New York Employment Lawyer Blog

Payroll deductions for lost or damaged company property is common, but it is prohibited by the New York Labor Code and the Fair Labor Standards Act.  Companies that dock pay or make payroll deductions for lost or damaged property, business losses or overhead expenses are playing with fire because there are two harsh penalties that can apply.

The first penalty that applies to unlawful payroll deductions is under the New York Labor Code.  The NY Labor Code specifically prohibits any deductions from an employee's wages unless that deduction is for the benefit of the employee such as paying for health insurance or some other employee benefit.   If a company does make a deduction from an employee's wages for lost or damaged property, business losses or another illegal expense, then the employee can sue under the NY Labor Code to recover the amount deducted and penalties equal to the amount deducted so the employee can recover twice the amount deducted plus all legal fees and costs incurred.   Illegal deductions can come in many forms.   I just met with employees of a cell phone retailer that had a list of payroll deductions which were all illegal.   The company would charge employees $100 for being late to work, $50 for errors in closing the stores and deduct for all lost, stolen or damaged merchandise or store property.   All of these deductions are illegal under the NY Labor code, yet the company has been making these deductions for over 6 years.

The second penalty that can be imposed on companies for docking pay can be far worse but it is a little more complex.   This penalty arises from the Fair Labor Standards Act and it provides that any company that makes unlawful payroll deductions can automatically lose its exempt status from the overtime pay rules for the employee category in question.   Losing an exemption can be a big loss for a company because it means that the company now owes the subject employees overtime pay retroactively.   For example, outside sales employees are normally exempt from overtime pay - this means that the company does not have to pay it's outside sales force for all of the overtime hours they work - this can be a huge savings for the company because outside sales people routinely put in long hours traveling.   However, if a company makes illegal payroll deductions from its outside sales force for lost or damaged cell phones, laptops, company cars or for any kind of company  losses or expenses, the company can lose the exempt status and be forced to pay its sales force for all of those overtime hours.   This could result in substantial liability for the company.

Companies that engage in illegal payroll deductions from wages or commissions are taking a big risk.   Employees are protected by two every strong laws that can impose large penalties.  If your employer is making deductions from your paycheck for losses or damages of any kind, you might have a case.   Please give us a call at 866-571-5010 if you would like to discuss your case.

Overtime pay should not be a concern for mortgage brokers, who have larger problems to deal with. Mortgage defaults are at record rates and the employment picture is particularly bleak in the industry. However, a series of recent rulings have opened the door to overtime eligibility for a broad number of housing/mortgage industry employees, including mortgage underwriters and loan officers. In 2009, the Second Circuit Court of Appeals in Whalen v. J.P. Morgan Chase held that underwriters responsible for approving loans did not engage in exempt administrative work. Earlier, the Department of Labor had reached a similar conclusion with respect to "typical" mortgage loan officers, reasoning that loan officers were primarily engaged in the sale of financial products and therefore protected by federal overtime law. Since much of the industry is misclassified, and since the Department of Labor is actively pursuing employers, employees should be particularly cautious of retaliation should you chose to raise the matter with management.

A good employment lawyer can make all the difference.   If you are looking for an employment lawyer, here are some things to look for.

1.  Select a Firm that Specializes in Employment Law

Make sure that the lawyer you choose focuses their practice on employment law.  Employment law is a niche area and you will probably be served best by someone who only practices in this area.  Be wary of lawyers who try to practice in several different areas including employment law.

2.  Choose Sides

Employment lawyers generally work for one side or the other.   They either represent employees or management.   Be sure to pick an employment lawyer who is on your side.  If you are an employee, find a law firm that generally represents employees as opposed to companies.

3. Experience

Nothing beats experience.   Try to find a lawyer who has been practicing employment law for at least several years.  The longer the better.  Find out what kinds of cases they have handled and see if they have handled cases like yours.

4.  Communication System

One of the top complaints about lawyers is poor communication.  You have the right to know what is going on with your case and to stay updated.   When interviewing lawyers, ask them how they keep their clients updated and how they communicate with their clients.   Some law firms today have websites that let their clients login and see the case calendar, documents and other case information.  These systems open up the process and make it easy for clients to stay informed.

5.  Legal Fees

There are basically three kinds of legal fees.   Hourly fees, contingent fees and task based fees.   There are also hybrid fees that combine certain elements of each kind of fee arragment.   Hourly fees can add up quickly and this can cause tension between between the law firm and the client.  Contingent fees avoid this problem because the fee is paid at the end of the case and out of the settlement or verdict.  With a contingent fee,the interests of the client and the lawyer are aligned in that they have a common goal of obtaining maximum value from the case.  With task based fees, the lawyer and client agree on a price for a task or phase of the case.   For example, the client and lawyer might agree that the fee for drafting a complaint is $2,500.  Each task going forward will be priced so that everyone knows what the cost will be - this fee system is good because it avoids the surprise bills associated with hourly billing.  The type of fee arrangement can have a big impact on your case so make sure you understand it and can afford it.

6.  Customer Service

As a client, you have the right to be treated with respect and care.  Your law firm should put your interests first and treat you like gold.  Your lawyer is there to serve you.   Make sure you take the time to select a law firm that understands the importance of providing exceptional customer service.  Pay attention to how the receptionists treat you on the phone.   Look for the little things - do the employees seem happy, are they courteous and professional and is the office organized and clean.   These are all signs of a well run operation.

7.  Reputation

A lawyer's reputation is important.  If you have connections to the legal community, ask around to see what other lawyers say about the lawyer you are thinking of hiring.

These are a few points to consider in selecting a good employment lawyer.   Take your time and interview several different lawyers so you can make an informed decision.  Please call The Ottinger Firm when considering employment law firms.   We have been representing employees since 1999.  You can reach us at 866-571-5010.

What is Overtime Pay?

Overtime pay is the compensation paid to an employee for the time worked over 40 hours in a single work week.  For example, if an employee works 50 hours in a week, he should receive overtime pay for those ten extra hours worked in that week.

Are all Hourly Workers Entitled to Overtime Pay?

Hourly workers are typically entitled to overtime pay.  There is one exception for highly paid computer employees, but otherwise most all hourly workers are entitled to overtime pay.

Does New York Law Require Overtime Pay?

Yes, the New York Labor Law requires that all "non-exempt" employees be paid overtime.   If you are not paid overtime, the New York Labor Law provides penalties equal to 100% of the amount due in overtime in addition to legal costs and fees incurred in suing your employer to recover your overtime.  For example, if you are owed $20,000 in unpaid overtime, you are entitled to recover double the amount due ($40,000) plus legal fees and costs.

What is the Hourly Overtime Pay Rate?

Overtime pay must be paid at a rate of one and one-half (1.5) times the regular rate of pay.

For example, an hourly employee who is normally paid $20.00 per hour would earn $30.00 per hour for all overtime hours worked.  Here is the formula:

Regular Hourly Rate x 1.5 = Hourly Overtime Pay Rate

When Should I Get Paid for my Overtime Hours?

Employees who work overtime must be paid at the same time they received their regular pay check.  Overtime must be paid in the same pay cycle as regular pay.    For example, if you are normally paid every other Friday, your overtime pay must be included in your regular paycheck.   If your overtime pay is delayed, the New York Labor code allows for penalties.

What Should I Do if my Employer will Not Pay me for the Overtime Hours I Worked?

You can report your employer to the New York Department of Labor.  They have a task force and they may investigate your employer and order them to pay you.   Or you can find an employment law firm like our firm that specializes in bringing overtime pay cases.   Most of these law firms do not charge their clients until the end of the case and the payment comes from the amount recovered in settlement or verdict.   Please feel free to contact us at 866-571-5010.

If you are employed as an unlicensed Junior, Associate, Senior or Consultant Accountant at one of the large accounting firms, or if you are a junior accountant or accouting clerk in any corporation, your employer may be violating the FLSA and state overtime laws by not paying you time and a half for all hours worked over 40. In Kress et al. v. PricewaterhouseCooper, Judge Karlton in the Eastern District of California preliminarily certified an FLSA collective action comprised of Associate and Senior Accountants who were not licensed as Certified Public Accountants. This fact bodes well for those at other accounting firms who are employed in similar positions and are contemplating bringing suit for unpaid overtime. Also, many large corporations violate the FLSA by employing closely supervised "financial accountants" who are not CPAs, perform mostly clerical accounting, and who earn a salary without eligibility for overtime compensation. These violations are particularly egregious given the long hours these accountants are known to work. Also, since the law is developing in favor of paying these employees overtime, it will be difficult for employers to argue that violations are not willful and therefore subject to additional penalties under the FLSA.

Most companies that offer severance packages are willing to increase the offer to those who ask.  Here are 7 ways to increase your severance package:

1.  Do Not Deal with Human Resources

Human Resources has one goal - to have you exit as efficiently and inexpensively as possible.  The Human Resources Department will tell you that severance packages are non-negotiable and that it is a "take it or leave it deal".  It is far better to deal directly with someone who knows you - your direct boss or even better is someone even higher up the chain of command who will help you.

2.  Get the Company to Agree that they Will Not Contest your Claim for Unemployment Benefits

Unemployment benefits can be a big help when you lose your job.   Most states make unemployment benefits available only to people who were not fired for cause.   Companies frequently contest unemployment claims by former employees because companies ultimately pay more if they have more claims.  If your company offers you a severance agreement, ask them to make it clear that they will not contest your claim for unemployment benefits - few companies deny this request.   It will give you peace of mind.

3.  Try to Stay Employed by the Company as Long as Possible

It is much easier to find a job if you have one.  Do all you can to stay with the company in some capacity so that you can tell job prospects that you are currently employed.  Unemployed people have a much harder time getting a job.   Avoid that.   Be creative - ask to be transferred to any other open position on a temporary basis, ask to be a consultant on open projects you were working on, volunteer, be a freelancer.   We have negotiated arrangements for our clients that allows them to still use company email and company voicemail while they work on projects from home or simply agree to consult as needed.

4. Ask for a Pro Rata Bonus

Many people today get a big part of their compensation in the form of a bonus.  Companies usually do provide bonuses to people who are terminated before the year ends and bonus payments are rarely included in severance agreements.   But if you worked for the company for part of the year, then you should get a pro rata share of your bonus.  For example, if you worked six months of the fiscal year before being terminated, then you should ask the company for 50% of your bonus.   In certain cases, employees are legally entitled to a pro rata share of their bonus, especially if their bonus makes up the bulk of their income.

5.  Ask for Early Vesting of Stock or Options

If you receive stock or options as part of your compensation, they are probably granted to you on a vesting schedule.   If your termination date is close to a vesting date, then ask our employer to accelerate the vesting of those stocks or options.

6.  Extend Your Health Benefits

COBRA payments can be expensive.   Try to stay on the company health plan as long as possible.   If you are offered four months of severance pay, ask to stay on the company health plan for four months as well.   If they deny this request, then ask them to make the first four months of COBRA payments for you.

7.  Ask for More Money

The last and most important thing to do is ask for more severance pay.  If the company has offered you three months of severance pay, ask for six months.  Be prepared to explain why you should get more severance pay.   Point out the results of your work or company loyalty or explain hardships such as kids in college, just bought a house etc.    The point is to just asking often puts more money in your pocket.  Do it politely.

When you need help from an experienced employment law firm, please give The Ottinger Firm, P.C. a call at 866-571-5010.

Severance agreements are often open to further negotiation.  Companies typically expect that their initial severance offer   will be met with a counter offer.   For example, if you have been offered four months of severance pay, your employer may be willing to pay six or seven  months of severance in you ask for it.  There is no harm in politely asking your  employer to  increase the offer.  In order to improve the terms of your severance package, your leverage  must be correctly assessed.   Every case involves a story and you need to tell your story in a  way that will move your employer to enhance  the initial offer.   The leverage points are different  in each case and they can include:

• Contributions that the employee has made to the company
• Profits that the employee helped the company realize
• Hardships that the termination will cause
• Potential illegal conduct associated with the termination such as retaliation or employment discrimination
• Non-competition issues

The list above includes just a few examples of leverage points.  Your situation should be thoroughly vetted so that each potential leverage point is identified.

The next question is how to present your case to the company.  Often who tells the story and how it is told can make a big difference.  If an executive has allies in the company, sometimes it is best to ask one of them to make the pitch or other times it is best for your lawyer to tell the story.   Again, every case is different and the key to maximizing your severance package is to present your case in a compelling way through the right person.  Another key point is identifying who in the company should be approached.  Should it be a human resources person or maybe another company official with influence is the better person?

Before making the pitch, you also need to identify everything else that you want to obtain as part of the severance package.   Of course an increase in the payment will be the main goal, but other benefits should be identified.  For example, many of our clients recognize that it is much harder to get another job if you are unemployed and want to remain involved with the company in some capacity so that they can conduct their job search while still working with the company.  It is not always possible to do this, but in many cases we have been able to keep our client involved by agreeing to work on a project as a consultant with company voice mail and email.   The date of the termination can be pushed back to allow more time to search for alternate employment.  In other cases, we have arranged for positive references and established a protocol for dealing with reference checks.   Other more minor benefits like keeping your company laptop and smartphone can be included in the deal.  It is all up for negotiation.

If you need help with a severance agreement, please give us a call at 866-571-5010.   We have been helping executives and employees negotiate severance agreements for over a decade.

Overtime pay cases are often brought as class actions.   If you are thinking of bringing an overtime pay class action, you should understand what is involved.  In this post I will explain some of the basics.

Why are Overtime Pay Cases Brought as Class Actions?

Most overtime pay cases are brought as class actions.  Class actions are used in overtime pay cases because each employees case by itself is often too small to justify the expense of a law suit.   By grouping a bunch of people with similar claims together in one case, the value can be substantial and it makes the case economically viable for the law firm.   The law firms typically do not charge their clients for any of the work they do on such a class action.   Instead, the law firms are paid at the end of the case out of the money obtained by settlement or verdict.  The lawyers' fee is usually determined by the judge but the fees typically range from 25% to 33% of the amount recovered.  The overtime pay class actions are beneficial because they provide a way for lawyers to represent large groups of people with common claims without charging them any upfront costs.  Many people with overtime pay issues are unable or unwilling to pay a lawyer by the hour and the contingency class action makes it possible for people to obtain legal services.

What is Needed to Bring an Overtime Pay Class Action?

A class action cannot be filed without a class representative who has a viable claim that is similar to the claims of others working for the same company.  The class representatives are the people who start the case and put their names on the law suit.   In many cases, the class representatives are people who have left the company and therefore are not worried about retaliation.   At the end of the case, the class representatives are often paid a bonus or bounty that can range from $5,000 to $20,000 or more in certain cases but this is just a broad estimate of payments that I have seen - payments can be lower or higher.   The point is that the law rewards people who come forward as class representatives.

How Does an Overtime Pay Class Action Work?

The first step is to file the case as a class action.   Even though the case is filed as a class action, it is not really deemed a class action until it is certified as a class action by the court.   After the case is filed, the lawyers for the employees will try to obtain evidence from the company that can be used to convince the judge that the case should be certified as a class action.   This process is often called pre certification discovery.   The lawyers will want to find out how many people were denied overtime pay, how much overtime pay is owed, what job descriptions were involved and how the employees were organized at the company.   This information is needed to demonstrate that the claims are similar and that it makes sense to group everyone together into one case as a class action.

Once the pre certification information is obtained, the lawyers will then file a motion to have the case certified as a class action.   The company will file a brief arguing against certification.   It is not uncommon for a case to settle before the judge decides the motion because the company does not want the case to be certified as a class action.   If the case does not settle and the judge certifies the case as a class action, the case will then move to the next phase.   During the second phase, the lawyers will be focused on obtaining evidence and figuring out how to bring a large case to trial.   Often creative techniques must be developed to present evidence efficiently.   If the case involves hundreds or thousands of people with very similar claims, some kind of statistical sampling is often used to prove the case and establish the amount that class members lost in unpaid overtime.  Taking class actions to trial is complicated and the various techniques used are far beyond the scope of this post.

How are Overtime Pay Class Actions Resolved?

Overtime pay class actions occasionally go to trial, but most of the time they settle.  Since these cases involve many people and complicated procedural issues, the cases are often resolved with the help of an experience wage and hour mediator.  Mediation is a voluntary process that is nothing more than an assisted negotiation process.   The mediator does not decide the case or even take sides.   The mediator is a neutral and helps the parties find common ground.   Usually the mediation takes place at the mediator's office and the parties are in different rooms and the mediator goes back and forth between the rooms - similar to shuttle diplomacy.   Mediation sessions can take an entire day or more.   I recently had a class action mediation session go from 9 a.m. to 2.a.m. and it took several more days of back and forth phone calls to finally resolve the matter.   But that is typical - the cases are complex with lots of moving parts and people so it takes time and patience to resolve them.

How Long Does it Take for an Overtime Pay Class Action to be Resolved?

Most of the overtime class actions that I have handled have been resolved within a year or two.   A rough average is a year but that can vary.   However, if the case goes to trial, then the case will take much longer.   But once the case is settled between the parties, then the settlement has to be approved by the court and that can take several more months.   Most courts will hold a fairness hearing to make sure that everyone received a fair settlement and then the money has to be divided up and sent to all of the class member.   All of this takes more time.   So it could be 18 months to two years before you receive your unpaid overtime.

If you have questions about an overtime case, please give us a call and we will help evaluate your potential case.   There is no charge or obligation.

Bonus disputes in the New York financial services industry are typically resolved by FINRA arbitration panels.   Often, the central issue in a FINRA bonus dispute case is whether the employer has absolute discretion to deny an executive his or her bonus.   Most financial service firms include language in their employee manuals and offer letters indicating that bonuses are purely discretionary.   In practice, however, FINRA arbitration panels and some courts have found that financial service firms do not have unfettered discretion to deny bonuses.

Financial Service Executives Can Recover Unpaid Bonuses

Under New York law, financial workers can bring bonus dispute claims.   Financial service employees can purse claims for breach of express or implied contract, violation of Article 6 of New York Labor Code, and quantum meruit for failing to pay earned bonuses.  Bonus dispute claims can involve large sums of money because highly paid Wall Street professionals typically receive a substantial part of their compensation as a bonus after the end of the year.

An Implied Limit on a Firm's Discretion to Set Bonuses

Even though most financial service firms state that they have absolute discretion in granting bonuses, FINRA panels often impose a duty of reasonableness.  Financial service companies cannot exercise their discretion in bad faith to deny an executive his bonus compensation.  A good reason for the denial of the bonus is needed as companies generally cannot deny bonuses just because the executive was fired or resigned.   For example, one court held that “it was an implied term of [the management’s] employment contract that the Bank would not exercise any discretion it had in relation to his bonus award irrationally or perversely.”

Another court considering a bonus dispute in the financial services industry held that a "reasonable inference can be drawn, from the contract language, that [the employer’s] discretion is not absolute, but rather limited by the terms of the contract" with respect to evaluating an executive's . . ."achievements of revenue goals and [the employer’s] ‘strategic objectives’ . . . . [W]hen read in context it might . . . be reasonable to infer, [from the employment agreement’s “discretion”-conferring language,] that once a bonus pool had been established for the year, [the employer] could only use its discretion to refuse a bonus based on plaintiff's failure of achievement within the established guidelines."

Bonus Payments are an Integral Part of the Financial Service Compensation Model

In the financial service industry, bonus payments are a key feature in an executive's compensation.  In many cases, an executives bonus is the biggest part of their annual income.   Because bonuses are so important in this industry, FINRA arbitration panels and courts narrowly construe and limit an employer's discretion in denying bonus payments because the bonuses are more like earned wages.   In bonus dispute cases, FINRA panels and courts will look at the parties course of dealing.  If there is a history of bonus payments based on the employee's performance, courts often examine the bonus history and try to apply a similar bonus formula for the time in question.   Also, FINRA panels and courts consider oral promises for bonus payments and they have held employers to their word.

If you were denied a bonus payment, you may have the ability to recover it even if you do not have a contract that provides for a bonus.  All you need is a prior history of bonus payments linked to your performance.  Also, if your employer refers you to language that gives the discretion to deny your bonus, don't believe it.  Their discretion is not absolute and you may well have the right to recover that bonus.   Feel free to give us a call if you questions about a bonus dispute.

Many employees with job titles such as "manager," supervisor," "associate manager," and "assistant manager" are entitled to overtime pay in New York even though they are salaried.   A true manager who actually spends most of his time managing other people is not entitled to overtime pay, but many people with managerial titles spend little to no time engaged in management and those people are entitled to overtime pay.  The key to an employee's right to overtime pay is their job duties - not their job title.  Court's focus on what a person actually does at work - not their title.

Do You Actually Manage other Employees?

The test for overtime pay eligibility is whether or not an employee actually manages other people.  In order to be considered a true manager, two or more full-time employees must report to you for daily oversight of their work and to obtain work assignments.   To be a manager, you would also need to have the power to hire and fire or at least contribute to the decision to hire and fire or to reward or discipline the employees who report to you.

Does Your Employer Dock your Pay if you miss Work?

A genuine salaried manager will be paid in full even if they miss work.   If your employer docks your pay for missed work, then you are not being treated as "salaried" employee and therefore you are entitled to overtime pay.

Are you Paid by the Hour or by Salary?

If you are paid by the hour, then you are entitled to overtime pay no matter what.  Anyone paid by the hour is entitled to overtime pay - it is that simple.  If you are paid by a salary, your right to overtime pay depends on your job duties.

Do You Spend Most of Your Time Performing Management Duties or Doing other Work?

Many people with managerial job titles don't spend much time managing people.   In order to be considered a manager for overtime pay purposes, you must spend at 80% or more of your time working on management duties such as supervising people.  However, if you spend most of your time doing other things such as stocking shelves, preparing food, cleaning, running a cash register or any similar work, then you are entitled to overtime pay.  A common corporate ploy is to give an employee a title such as "assistant manager,"  pay them a salary and have this person work many hours of overtime doing non-managerial work such as filling in for other hourly employees and never pay them any overtime.   Remember - you are entitled to overtime pay unless you spend 80% or more of your time actually managing two or more full time employees.

Duties of an Actual Manager who is Not Entitled to Overtime Pay

A genuine manager who is exempt from overtime pay, should be spending most of their time:

• Directing the daily work of at least two full-time employees
• Determining the work schedules of other employees
• Engaged in the hiring and firing of employees and/or contributing to the decision to reward or discipline employees

If you want to determine if you are entitled to overtime pay, please feel free to contact us and we will go over your job duties with you to help make this determination.   There is no cost or obligation and no credit cards required.

"First they ignore you, then they laugh at you, then they fight you, then you win."  - GANDHI

If you are thinking of bringing a case against your employer, you should know how these cases often play out.  After handling hundreds of employment cases over the years, I have noticed that these cases all tend to follow the same pattern. This is true for most all employment cases including claims for overtime pay and workplace discrimination.

Stage One - Ignoring It

Companies often ignore cases at first.  They ignore them because they don't want to deal with it and they hope the matter will just go away.   This is actually a good strategy because a lot of people will just go away if they are ignored.   Many employment law firms do not like filing law suits and they prefer to settle cases early so if a company ignores the case, sometimes they do just go a way.  So do not be surprised if the company ignores your case or provides a curt denial at first.  That is a common response.

Stage Two - Laughing About It

I cannot tell you how many times companies have tried to laugh off the allegations made in our employment cases.  The arrogance can be shocking.  But let them laugh.  We have handled many cases that start out with laughing denials and wind up settling with a large check or a verdict against the company. For example, during a recent sexual harassment case, the company representatives and lawyers were actually laughing during the hearing.  They never credited our client's claim and were confident they would prevail.   I would love to have seen their faces when they received the judge's decision finding in our client's favor.

Stage Three - Fighting It

Typically, after ignoring the case and then laughing it off, the company will then fight it.  They will deny the allegations, blame the employee or anyone else they can cast blame upon.  They will try to delay the case and complicate it and they will resist turning over relevant information.  The lawyers who defend companies in these cases are typically paid by the hour so they try to drag things out so they can bill more hours.  For example, a deposition that should only take two hours will take seven or eight hours and the company lawyers may even try to drag it out into a two day affair. If you bring an employment case against your employer, you may have your deposition taken and during this deposition you may be accused of being incompetent, dishonest, immoral and generally unfit for employment.  You may also have to deal with requests for information that have no connection to your case.   For example, I recently had to fend off a request for dental records in an employment discrimination case.   Our client's dental records obviously had nothing to do with the case but the company asked for them anyway just to be annoying.  These are just a few examples of what goes on in these cases.  Once these cases get into litigation, they tend to be long, nasty, expensive and unpleasant.

Stage 4 - You Win

If you can survive the first three stages of an employment case, your case will probably settle before trial.    Approximately 95% of these cases are resolved through settlement.   Settlements require compromise and that means getting less than you deserve.   When a case settles, you are likely to feel like a reasonable solution was reached in which both sides compromised their positions.   There is a famous saying that the sign of a good settlement is when neither side likes the result - the company usually feels like it paid too much and the employee feels like that they were not paid enough.

Yesterday I wrote about New York City's powerful disability discrimination law.   At our office we are hearing from more people about disability discrimination.   The sad truth is that many companies do not want to be bothered dealing with a disabled employee.   We currently have a case involving a large retailer that fired an employee immediately after she was released from a psychiatric treatment facility.   We recently settled another disability discrimination case for a woman who was fired soon after she was diagnosed with kidney disease and asked for time off for treatment.

Since disability discrimination cases often reveal a cold and uncaring side of humanity, these cases can produce large verdicts.   For example, a former a former Rite-Aid employee who alleged disability discrimination, was awarded $3.4 million by a jury.   The victim was 45 year old Maria C. Martinez who worked for Rite-Aid from 1983 to 2007 as pharmacy technician.

In 2003, Ms. Martinez was required to take disability leaves of absence to treat a psychiatric illness.  In 2004, Ms. Martinez experienced a work related anxiety attack and took several months off of work.  When she returned to work, her supervisors harassed her on account of her psychiatric disability.   They called her a “basket case” and gave her unwarranted reprimands and transferred her from store to store just to make her life difficult.

At trial, Ms. Martinez accused Rite-Aid and her supervisors of disability discrimination.   The jury found that Rite-Aid’s employees intentionally discriminated against Ms. Martinez due to her psychiatric disability.   Another phase of the trial is set to begin shortly to determine the amount of punitive damages.  The punitive damages will be in addition to the $3.4 million verdict already rendered.

In another disability discrimination case,  a jury awarded a cancer patient over $8 million.   The cancer patient was fired while she was receiving cancer treatment.  The jury found that her employer fired the employee because she had cancer in blatant violation of the disability discrimination laws.

Disability discrimination case be strong and produce much needed income from disabled individuals who have lost their jobs.   It is hard enough dealing with a disability, but when the hardship is compounded by unfair treatment at work, that just makes it worse.   If you have questions about the disability discrimination laws, give us a call.

New York City has its own disability discrimination law.   It is part of the New York City Human Rights Law and you can find the text of the law here.  This disability discrimination law is better for employees than the federal Americans with Disabilities Act.   The New York City disability discrimination law defines disability broader than the ADA and protects more people and there are no limits on damages and even better, you can bring a case under this law in New York state court and avoid federal court.

Section 8-107 of the New York Human Rights Law provides that employers are prohibited from discriminating against an employee because of an actual disability or a perceived disability.   This law protects not only the disabled but also those who are perceived as disabled.  Under this law it would be illegal for an employer to fire non-disabled employee because the employer suspected that the person was disabled due to rumors, hospitalization, missed work or the like.   This is serious law that is truly meant to help anyone who is fired or otherwise denied benefits or opportunities at work because of a disability or being perceived as disabled.

The New York City disability discrimination law also requires employers to provide reasonable accommodations to help disabled employees do their job. The law provides that employers "shall make reasonable accommodation to enable a person with a disability to satisfy the essential requisites of a job or enjoy the right or rights in question provided that the disability is known or should have been known by the" employer.   This means that employers are required to provide disabled employees with tools, equipment, support, flexible schedules and anything else within reason that will assist a disabled employee in doing their job.   If you are disabled and need assistance to do your job, be sure to put in a request for help but do so in writing and keep a copy.  You also need to let your employer know about you disability and it is best to do so in writing and keep a copy.

The New York City Human Rights Law also protects employees from retaliation.  If a company fires or takes any other adverse action against a disabled employee for asking for help or making a complaint about disability discrimination, that employee can sue the company for retaliation.   Disability retaliation cases can be very strong and produce high verdicts.

If you have any questions about your rights at work, please feel free to contact us for a no cost, no obligation consultation.

The CEO of a California hospital was recently fired and given a severance package worth nearly $1 million.   See story.   How did he do it?   How can you get fired and walk away with a million dollars?

It requires advance planning.   The CEO was protected by a severance pay clause in his written employment agreement that guaranteed him 18 months pay if he was fired without cause. These clauses are enforceable.   Also, the CEO's employment agreement provided a "non-disparagement" clause that prevented the hospital from saying anything bad about him.   Not a bad deal.

How did he do it?   First, he had the leverage to request it because he had an important skill that the company needed.  Second, he probably had a good employment lawyer who knew to ask for it and how to draft the provision for him.   Anyone who is negotiating a high level position with a company should be sure to get help in drafting the employment contract because severance pay provisions can make a big difference.

The lesson here is that advance planning can make your life much easier in the future if things go wrong at work.   No one wants to think about getting fired when you are getting hired, but that is the best time to protect yourself.  If you find yourself negotiating an employment contract, make sure you include a severance pay clause.   If you wait to ask for severance pay after things turn ugly, then it is too late and you will have little leverage.

If you don't have an employment contract that contains a severance pay provision, then you should look at your companies policy manual.   Some companies actually set out severance pay guidelines or formulas and those can be used as well.   If your company has such a policy, then you should get a copy asap and keep it at home.   Sometimes companies terminate employees without notice and cut off their access to company materials and then it is too late.   Again, advance planning is the key.

Do you have the right to severance pay in New York?

You do not have the right to severance pay unless you have an employment contract that sets forth the right to severance pay.  Or, if you are in a union, you may have the right to severance pay under the terms of a collective bargaining agreement.  In rare cases, employers will set forth a severance policy in the company employment manual.

The New York Labor Law does not provide employees with the right to severance pay.   Those companies that provide severance pay, do so on a voluntary basis.  Employees generally do not have a legal right to severance pay.   If companies do not have to provide severance pay, why do they do it?   They do it to make the transition smoother - companies want departing employees to leave quietly, cooperate with the transition and promise never to sue them.

Under certain situations that involve allegations of unlawful conduct such as employment discrimination, sexual harassment, retaliation or other similar charges, a settlement or severance agreement can be negotiated.  Employees can use the leverage of a potential employment suit to negotiate favorable terms.

Do you  have the right to accrued vacation pay in New York if you quit or get fired?

Your right to accrued vacation time depends upon the terms of your employer's vacation/resignation policy.  If your employer has a policy that allows for the accrual of vacation time and the policy does not state that the time is forfeited upon termination or resignation, then you have the right to receive your accrued vacation time.

If your employer does not have an accrued vacation time policy, then you do not have the right to any unused vacation time if you are fired or resign.  New York Labor Law does not provide employees with an independent right to unused vacation time.

If you have questions about a companies severance pay or vacation pay policies in New York, please give us a call.  We have been helping New York employees for over ten years.

The Center for WorkLife Law at the University of California recently published a study called Poor, Pregnant, and Fired: Caregiver Discrimination Against Low-Wage Workers. Stephanie Bornstein of Workplace Fairness wrote a post on the study.   The study explains how women and male caregivers in low wage positions are routinely discriminated against.  The study illuminates the fact that American anti-disrimination laws do not apply to poor workers as employers regularly fire women for getting pregnant, sick or who need time to care for sick family members.   The study identifies six patterns that impact low wage workers who attempt to balance work and family responsibilities:

• Extreme hostility to pregnancy in low-wage workplaces
• A near total lack of flexibility in many low-wage jobs
• Low-wage workers treated disrespectfully, or even harassed at work
• Low-wage workers denied their legal rights around caregiving
• Hostility to men who play care giving roles
• Harsher treatment of mothers of color than white mothers

Low-wage workers are clearly being abused.  They are subject to blatant employment discrimination while middle and upper income workers enjoy more protection.   Why is this?   The study by Center for WorkLife details the suffering and its causes - but there is a practical contributing cause that is overlooked in the study.  It has to do with legal fees and access to legal services.

Employment lawyers who represent employees are one of the main protectors of employee rights.   If an employee is subject to employment discrimination, they should be able to hire an employment lawyer to sue their employer.   That is how the system is supposed to work.   But, the economics of modern law firms make it very hard to help low-wage workers.  Low wage workers cannot afford to pay a lawyer by the hour so the only option is a contingent fee arrangement.   Under a contingent fee, the lawyer's fee is based on the value of the case and low-wage worker cases have low values because the value of the case is dependent on the employees income.   Therefore there is little incentive for lawyers to take on low-wage cases, in fact it is easy to lose money on these cases.   Since there is no economic incentive for lawyers to help low wage workers, low wage workers do not have ready access to legal services.

For example,  if a person who earns $25,000 a year is fired for being pregnant, they might recover a years salary -  $25,000.  Most young mothers will find a new job within a year so the economic damages will probably be close to a years pay.    With a recovery of $25,000 the law firm will earn a contingent fee equal to one-third of the $25,000 - or $8,333.  It could easily cost more $8,333 to sue a company for pregnancy discrimination so law firms really cannot bring these cases in court.   It is bad business - a money losing venture.   The only way for a law firm to make money on such a case is to go all the way to trial and win and be awarded attorney's fees - but that is risky, time consuming and it takes years to get a case through the courts.   But, if a woman earning $150,000 a year is fired for being pregnant, she might be awarded $150,000 or more for the same thing. The legal fee in that case will be one-third of $150,000 or $50,000.   This case makes more economic sense because the fee will be $50,000 and the firm can earn a profit even if it settles.    As you can see, the well paid mom will have access to legal services but the low wage mom will have a harder time.  The legal system is broken because low wage workers are left out.

Since cases for low wage workers can only be handled on a contingent fee basis, most law firm's will avoid bringing cases for low wage workers because they will lose money.   Low wage workers do not have ready access to quality legal services and employers know this and therefore they can violate their rights with relative impunity.

A major improvement would be if our employment laws were altered so that employers faced penalties that were not based on a workers income.  This in itself would make it easier for lawyers to help low-wage workers and help to change the system.   It is possible to modify the laws to require that the legal fees must be paid separately in cases involving low-wage workers, even settlements by the employers.  This would provide an incentive for lawyers to help low-wage workers.

There is a great blog today by Michael Helfand in Today's Workplace on non-compete agreements.   The point of the post is that more employers today are requiring people to sign non-compete agreements as a condition of employment.   It is an employer's market now with so many hungry job applicants and employers are taking advantage of their leverage and requiring applicants to forgo benefits, take lower pay and even sign non-compete agreements.   You should read Michael's post to learn about all of the factors that are considered in determining when a non-compete agreement is enforceable.

In New York, courts will enforce non-compete agreements.   They have to be reasonable and limited in scope, time and geographic reach as explained in Michael's post.   However, even if the agreement is unreasonable in some part, many judges in New York will simply modify the non-compete agreement and enforce the modified version.   For example, if a non-compete agreement states that the employee is bound for three years, a New York judge may find that three years is too long and change it to two years.   This is called "blue penciling" the agreement.   This means that New York non-compete agreements will be enforced even if they are illegal when written - the courts will simply modify them so they are legal.

In New York, non-compete agreements must be taken very seriously because even if the agreement itself is too broad or overreaching, it may still be enforced in a modified version.   You can be kept out of your industry for years and that can ruin your career and be financially devastating.  Most judges do not like non-compete agreements, but they will enforce them so be careful if you are presented with one.   It is a loaded weapon - you are giving your employer the power to do serious damage to your life.   In my view, non-compete agreements should be avoided at all costs.

Non-compete agreements should only be requested in rare situations in which the employee has access to critical company information.  For example, many CEO's are required to sign non-compete agreements because they have access to key company information and could do serious damage if they leave and work for a competitor.   But your average employee does not have the ability to do any unique damage if they work for a competitor and there is no reason for average employees to sign non-compete agreements.   Yet many companies today are doing this.   Think seriously about walking away from those jobs because you are giving the company the power to do major harm when your employment ends.

If you have a question about a non-compete agreement, feel free to give us a call.   We can help you analyze your agreement and help negotiate one that is less restrictive.

There was an article in the Wall Street Journal a while ago entitled "Out of Work, Out of Options and Over the Hill"  It focused on Henry Dietz who is 55 and out of work for 20 months.  Now he is broke, facing foreclosure and cannot pay his kids college tuition.

Losing your job in your 50s or 60s can be financially devastating because finding comparable  employment is often impossible.  If this happens to you, you need to know if age discrimination was a factor.

Age discrimination cases produce the highest verdicts among all other employment cases.  The median age discrimination verdict nationally is $332,000 according to a study by Jury Verdict Research.  Age discrimination verdicts ranged from $25,000 to $53 million from 2003 to 2009.  Most age discrimination cases settle before trial and settlements are typically lower than what is obtained from a jury verdict.

How can you tell if you were a victim of age discrimination?  Here are a few things to look for:

• Comments showing age bias
• Encouragement to retire
• Replaced by a younger person
• Reduction in force that favors younger workers
• Pattern of favoritism toward younger employees

The factors above indicate age discrimination, but evidence of age discrimination can come in any form.  We recently filed a case on behalf of a 68 year old woman who worked for a company in New York for 17 years.   The President of the company repeatedly ask the our client when she was going to retire and told her that he would fire her if she did not retire.   Eventually the company told her that they were "retiring" her, but she did not want to retire.   The so called retirement was really just a termination based on her age.   She was retired against her will.   Our client was fired because of her age and that kind of conduct is prohibited by the Age Discrimination in Employment act.   Our client is not likely to get another comparable job because of her age but she wanted to continue working so we will be seeking a result that will provide her with the lost income.    If you have seen these signs and have lost your job, you might have an age discrimination case. Call us for a free age discrimination case evaluation or fill out the form to the left and we will contact you.  We will go over your case with you and help you determine if you have a case.   There is no charge or obligation for the consultation.

The New York Labor Law prohibits the deduction of any costs or expenses from an employees wages unless the cost is for the benefit of the employee.   Lawful deductions would include health insurance premiums, pension contributions or the like because these are for the benefit of the employee.   Any deduction from wages for losses, breakage, or business operating costs are prohibited.

Even though the law is clear, companies still deduct illegal costs such as business operating costs and losses from their employee's wages.   Right now my law firm is handling a case in which a company deducted about 5% from each person's pay check to cover general business operating costs.   This is illegal and we are suing the company to recover these deductions along with interest and penalties provided by the New York Labor Law.

We handled another similar case in which business losses were deducted from sales commissions.   In that case, salespeople sold loans to small business owners.  If the loans were not paid back, the company would deduct a percentage of the unpaid loan from our client's commission payments.   We sued the company and won. The company was forced to pay back all of the illegal wage deductions. The New York Labor Law also imposes penalties and interest and the payment of attorneys' fees.

If your employer is deducting expenses or losses or other illegal costs from your pay, give us a call at 866-571-5010 and we will help you determine if those deductions are legal.  If they are illegal, we can recover those deductions.  We have been helping employees since 1999. Use our FREE CASE REVIEW.

In New York, if you get fired, you must be paid in full on the next pay day.  Your employer cannot hold your paycheck for any reason.  They cannot say that you must sign a document or return company property to get your check.   You have an absolute right to your pay because it is your money once your earn it.

For example, if you get paid on the 1st  and 15th of the month (bi-monthly) and you get fired on the 21st of the month, you must be paid in full (including overtime pay) at the next pay cycle - the 1st of the month.  And you have the right to have your last pay check mailed to you.  

 If you are not paid on time (within the pay cycle in which you were fired), your employer then can be forced to pay a penalty equal 25% of the amount due plus all reasonable attorney's fees that you incurred in enforcing this right.    

If you are paid commissions in New York, all earned commissions must be paid within five days of your termination.   If you have unearned commissions pending at the time you are fired, those must be paid within five days after they are due.   You can request that your commissions be mailed.   If your commissions are not paid on time, you can force your employer to pay you "double damages" or twice the amount you are owed and the company will have to pay you for any legal fees incurred in enforcing this right in court.   

If you are having trouble collecting your pay or outstanding commissions, please give us a call for a free consultation.  We will help you determine if you have a case.  There is no charge or obligation.   We have been helping employees enforce their rights for over ten years.  

Photographs of pregnant women are disappearing from Facebook.  See the story on Jezebel "Why is Facebook Deleting Photos of Pregnant Women?"

A Facebook employee claims "We don't have a special standard for pregnant women."  It just seems that way.  Is Facebook removing these pictures because they think it makes people uncomfortable? They better think again.

There is a sustained increase in the number of pregnancy discrimination law suits.  Women are not sitting back anymore - they are standing up for their rights.  A Wall Street Journal article recognized a changing demographic and new activism among mothers -"More Women Pursue Claims of Pregnancy Discrimination."

Is Facebook's unfriending campaign against pregnant mothers going to provoke online activism?  It seems to have started already.

Pregnancy discrimination in New York is rampant as well.  Do you think that there is a bias against pregnancy women?  What accounts for the rise in pregnancy discrimination cases and could it be linked to Facebook's new practice of deleting photos of pregnant women?

We don't know what Facebook is doing.  But we do know how to help women who have been discriminated against at work due to their pregnancy.   Call us or use the form on the left to contact us and we can help you with your pregnancy discrimination matter.

New York employees who are owed overtime pay, will soon be able to collect twice the amount owed to them.  This new and improved overtime pay law takes effect on April 12, 2011.   The new law, called the New York State Wage Theft Protection Act, improves upon the old law in several ways outlined below.

1.  Harsh Penalties for Overtime Pay Violations

The new law increases the penalty for overtime pay violations from 25% of the amount due to 100% of the amount due.  Under the old overtime pay law, a company could be fined up to 25% of the amount due.  For example, if a company owed an employee $1000 in unpaid overtime, the company could also be forced to pay a penalty of 25% or $250.00 in our example.  Under the new law, the penalty has been increased to 100% of the amount due.  In our example, the company would have to pay the employee the $1000 in unpaid overtime and another $1000 as a penalty.  This is a huge win for employees because they now can receive twice the amount due in overtime pay.  If an employee wins in court and the company fails to pay within 90 days, then an additional fine of 15% is added on.  This new law is very tough on companies that attempt to skirt the overtime pay laws.

2.  Criminal Penalties for Overtime Pay Violations

It is a crime to deprive employees of earned overtime pay.  If an employer is caught violating the overtime pay laws once, they can be charged with a misdemeanor and fined up to $20,000 or imprisoned for up to a year.   If they are caught a second time within six years, they can be charged with a felony.  Criminal penalties can also be imposed upon employers who fail to keep adequate pay records.

3.  Anti-Retaliation Protection

Employers are prohibited from taking any kind of adverse action against employees who inquire about or complaint about their right to overtime pay.  Employers who retaliate against employees who complain about overtime pay violations can be fined up to $10,000 and forced to repay any lost wages to the subject employee and rehire any employee who is fired for complaining about overtime pay.

4.  Wage Notices and Pay Statements

New York employers are already required to provide newly hired employees with wage notices that identify their rate of pay, the dates of pay and their overtime pay rate if they are not exempt.  The new law requires employers to explain the manner in which the employee is paid - i.e. by the hour, day, week, shift, commission or another basis.  The new law also requires employers to provide pay statements that designate the dates of work that the wages cover and the rate and basis of the pay as well as the applicable overtime pay rate and number of regular and overtime hours.

5.  Summary

Recent studies have shown that New York City workers lose more than 1 Billion a year in unpaid overtime.  Overtime pay violations are rampant in New York and around the country.   Many companies just do not pay overtime unless they are forced to do it. This new law is a good step in the right direction.  It will give employees more power and more incentive to demand overtime pay.

If you have a question about your right to overtime pay, please give us a call at 866 571 5010 or fill out the form on this page and we will call you back.