New York Employment Lawyer Blog

If you left your car keys at work, would your employer have the right to take your car out for a spin?   If you left your house keys at work, would your boss have the right to enter your home and rummage through your belongings?   No.

Likewise, if you leave your personal online email password at work, can your employer log onto your gmail or yahoo mail account?  The answer is no.  There is a law that protects your right to privacy in your online email accounts.

The law is called the Stored Communications Act.   This law makes it a crime for anyone to access your online email accounts without your permission.   It also creates a civil right of action to sue for damages, legal fees and even punitive damages.

Most companies today have policies stating that employees have no right to privacy in their emails or anything they do on a company computer system.   The law is clear that you do NOT have any right to privacy in your work email.  But you do have the the right to privacy in your personal online email accounts like gmail,  hotmail or yahoo mail even if you store your passwords at work.  If you access these personal email accounts from a company computer then your employer may have the right to view the emails you send and receive from your work computer - but they do not have the right to logon to these personal email accounts and view other emails.

There is at least one published case in New York where a federal court fined an employer for accessing an employee's personal online email account.  In that case, the employee stored their login information on their work computer and the employer then logged onto the employee's gmail or yahoo mail accounts and obtained damaging information that the employer tried to use against the employee.   The employee sued the company back and the employer was not allowed to use the information that they obtained from the gmail and yahoo mail accounts and the employer was fined $4000.00 as well.  The case is Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F.Supp.2d 548 (S.D.N.Y. 2008).

If you believe that your privacy rights at work have been violated, please give us a call.  We have been handling employee rights matters since 1999.

Not everyone is entitled to overtime pay in New York.  There is a notion that certain high level and well paid employees should not be entitled to overtime pay.  In order to effect this goal, the overtime pay laws have carved out certain "exemptions."

The Executive Exemption

In order to fall within the executive exemption, an employee must meet each criterion listed below.  If they do not meet one of the elements, then they are not exempt and they are entitled to overtime pay.

(1) The employee must be paid on a salary basis at a rate not less than $455 per week or $23,660 per year;

(2) The employee’s primary duty must be managing the company or a department or subdivision within the company;

(3) The employee must regularly supervise two or more full-time employees or an equivalent group of part-time employees; and

(4) The employee must have the authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight.

If an employee meets each of the four elements above, then they fall into the executive exemption and they are not entitled to overtime pay in New York.

To summarize, an employee is not entitled to overtime pay in New York if they are paid a salary of at least $455 per week ($23,660 per year), they manage some part of the business like a department or a store, they supervise at least two full time employees and they can hire and fire people or have input into the process.

Be aware that many companies give employees false titles like "assistant manager" and pay them a salary in order to trick the person out of overtime pay.  Do not be fooled by your job title because titles do not matter.   All that matters are the 4 elements listed above.  If you don't meet each one of those elements, then you are entitled to overtime pay in New York even if you have a manager's title.

If you have any questions about your right to overtime pay, please give us a call for a free consultation.   We have been helping employees in New York for over ten years and we can help you

IT and high tech workers are often entitled to overtime pay, even if they are highly paid salaried employees.  IT employees who provide technical support to the company by repairing, maintaining, installing, moving, and supporting the operation's computer systems have recovered overtime pay.

Job titles at companies vary widely and the title alone does not determine eligibility to overtime pay.  However, people with the following job titles have been awarded overtime pay:

• Network Engineers
• Help Desk Workers
• Systems Analysts
• System Administrators
• Web Administrators
• Business or Systems Consultants
• Database Administrators
• Information Technology Consultants or Specialists

The ultimate decision about an IT workers right to overtime pay comes down to the kind of work that is performed.   IT workers who perform support functions and who are closely supervised, perform routine, repetitive tasks and who are required to follow company procedures and protocols in doing their work are entitled to overtime pay.  These IT workers often perform specific tasks such as updating and installing software and configure settings for existing systems and applications, and maintain, set up, move and otherwise configure computer hardware.

IT workers who typically are not entitled to overtime pay in New York engage in higher level or creative work.  Generally, these IT workers operate independently without close supervision and address new problems each day or design and select new systems. Their work regularly involves designing or creating new systems or applications and they exercise significant independent discretion and have authority to make significant changes to the companies systems.

If you are an IT or high tech worker and have a question about your right to overtime pay, please contact us for a free consultation where we will analyze your position and help you determine if you are entitled to overtime pay.

It is easy to calculate your overtime pay in New York.

First, determine if you're paid by the hour or by salary.

Hourly Employees

1. Determine your overtime pay rate by multiplying your regular hourly pay rate by 1.5.   For example, if you are normally paid $30.00 per hour, multiply this by 1.5.  In this case, the result would be 45 (30 x 1.5 = 45).  This is your overtime pay rate, often referred to as "time-and-a-half."
2. Determine your weekly overtime hours by subtracting 40 from your weekly total.  For example, if you worked 52 hours, you have 12 overtime hours (52 - 40 = 12).
3. Determine your total overtime earnings for the week by multiplying your overtime pay rate by your overtime hours. The calculation in our example is:  12 hours x $45/hour = $540.

Salaried Employees

Many salaried employees are entitled to overtime pay.

Here is how to determine your overtime pay if you are salaried:

1. Determine your weekly salary.  If your salary is annualized, simply divide your annual salary by 52. For example, if your annual salary is $50,000, divide this by 52 (50,000/52 = $961.53 per week).
2. Determine your premium rate.  Your overtime premium rate is the extra amount that is added on to your regular hourly rate.  This is a two step process.  First, determine your regular hourly rate by dividing your weekly salary by the number of hours worked that week.  In our example, the weekly salary is $961.53 and if 50 hours were worked that week, divide 961.53 by 50 (961.53/50 = 19.23).  $19.23 is the regular hourly rate for that week.   Your hourly rate will change each week based on the hours worked.  Second, divide your regular hourly rate in half.  In our example, 19.23/2 = 9.61.  The overtime premium rate in our example is $9.61 per hour.
3. Determine the total overtime pay due for that week by multiplying your overtime premium rate by the number of overtime hours worked.   In our example, 50 hours were worked that week and this means that 10 of those are overtime hours (50 - 40 = 10).   The total overtime pay earned that week is  $96.10 (10 x $9.61 = $96.10).

If you have questions about overtime pay, please give us a call or use our FREE OVERTIME CASE REVIEW.

A new failure to promote case came down from the Second Circuit yesterday entitled Wharff v. SUNY.   It is no surprise that the employee lost on summary judgment.  He did not have direct evidence that the promotion decision was based on discrimination.   It is extremely difficult to obtain the evidence needed to win these cases.

At our law firm, we rarely take single plaintiff disparate treatment failure to promote cases because they are so hard to win and often there is not much to gain anyway.   Even if a plaintiff can somehow marshall the evidence required to win a failure to promote case, the damages are often inconsequential.    In my jaded view, these single plaintiff cases are best reserved for high dollar investment bankers and the like who can afford to finance them and have a lot to gain if they win.

Most disparate treatment failure to promote cases come down to a comparison of the qualifications of the plaintiff and the people who were promoted. But this is an uphill battle because as the Court held in Wharff "Title VII does not require that the candidate whom a court considers most qualified for a particular position be awarded that position; it requires only that the decision ... not be discriminatory."  Citing Lieberman v. Gant, 630 F.2d 60, 67 (2d Cir. 1980).

This is a difficult standard to meet.   Unless the decision maker confesses discriminatory intent, it is almost impossible to win.  Even if a plaintiff can establish a gross disparity in qualifications, they still lose unless they have some other evidence of discriminatory animus.   It is circular logic because typically the only available evidence of discrimination is the fact that a less qualified person was chosen over a more qualified one - but that is not enough.

What other evidence might exist to prove discrimination?   Maybe the decision maker is one of those lunatics who announces to others that she is not going to promote anymore men.   But people rarely put their discriminatory animus on display for others to see.

In Wharff, the plaintiff was a SUNY Lab Technologist who claimed that he was not promoted to Assistant Supervisor due to his gender.  One glaring problem with Wharff's case is the fact that a number of men were promoted to Assistant Supervisor, just not him.   Several women were also promoted over him as well and he attempted to focus his argument on them.  One of the women who was promoted was less qualified, but that was not enough.  He did have any other evidence of discriminatory intent so his case was dismissed on summary judgment.

Since direct evidence of discriminatory intent is usually not available, a failure to promote plaintiff must find some other way to demonstrate discriminatory animus.   The best way to do that is with statistical evidence.   The plaintiff in Wharff made a feeble attempt to establish disparate impact with statistics but his data set was skewed and too small to be meaningful.

The term "cat's paw" comes from a fable created by Aesop in which a clever monkey tricks a cat into pulling  hot chestnuts from a fire with its paw.   The monkey devours the nuts and runs off leaving the cat with nothing  but burnt paws.  The moral of the fable is that one can use another as a device to achieve a result without  exposing himself to harm.

Employment discrimination can be accomplished the same way.   A person with discriminatory animus can  operate in the background and cause others to take adverse employment action.   In this situation, the  person who makes the ultimate decision may not act with discriminatory animus.  The ultimate actor is the  proverbial cat's paw - a mere device used by another to achieve a result.  But the result is the same -  adverse employment action occurs and it is directly motivated by discrimination.   The harm is not  ameliorated by the fact that the ultimate decision maker was manipulated by another with evil intent.

In the past, however, some courts have been unwilling to hold companies liable if the ultimate decision  maker (the cat's paw) did not act with discriminatory intent.  Companies shielded themselves from  liability in a cat's paw situation.

Justice Scalia, of all people, shined a light on this fallacy in Staub v. Proctor Hospital decided March 1, 2011.   In Proctor, two supervisors, motivated by discriminatory animus, conspired to set up another for termination.   The two supervisors caused their manager to fire the victim by writing false reports about the victim.   The  manager was not motivated by discriminatory animus.

The Seventh Circuit Court of appeals held that discrimination did not occur because the manager himself was not motivated by discriminatory intent.  Justice Scalia, writing for the majority, reversed and held that the "employer is at fault because one of its agents committed an action based on discriminatory animus that was intended to cause, and did in fact cause, an adverse employment decision."

Now, in employment discrimination cases, plaintiff's can look beyond the ultimate decision maker for evidence of discriminatory intent.  If others acted with discriminatory intent and were the proximate cause of the adverse employment action then the employer will be liable.  The Staub v. Proctor decision is sound because it reflects reality.  Decision makers are often motivated by others and now these other influencers are part of the equation in employment discrimination cases.