Employment Litigation

Employment Litigation

Employment Litigation At The Law Office Of George T. Peters, PLLC

Fair Labor Standards Act (FLSA) Violations

The Fair Labor Standards Act (FLSA) establishes a national minimum wage, requires the payment of overtime for all hours worked over forty (40) hours per week, and prohibits child labor. Many employees are unaware of their rights under the FLSA and, as a result, are unaware that employers are violating their rights in a number of different ways.

Minimum Wage Violations

Under Federal Law, all employees are entitled to minimum wage equal to at least $7.25 per hour for the first 40 hours they work per week (unless your state has a higher minimum wage). After 40 hours per week, employees must be paid time and one half for all hours over 40. If an employee is paid on a salary basis, that salary must cover the first 40 hours per week at $7.25 per hour. Employees who receive tips as part of their job are also entitled to minimum wage. However, an employer is potentially allowed to take a “tip-credit” and pay employees lower hourly wages if the employee is explicitly notified of the tip credit and also assuming the employee receives all tips they are entitled to. Many employers in the food service industry fail to provide employees with any minimum wage, arguing that their employees have received proper wages through tips received. This policy is unlawful and violates the FLSA. Furthermore, in order for employers to take a “tip-credit” they must strictly comply with notification requirements and tip redistribution requirements. If you are a tipped employee who has not received minimum wage, call the FLSA lawyers at the Law Office of George T. Peters, PLLC for a free consultation regarding your employer’s unlawful actions.

Overtime Violations

Under the FLSA, all non-exempt employees are entitled to time and one-half pay for all hours worked over forty (40) hours per week. While “executive,” “administrative” and “professional” employees are exempt from the FLSA overtime provisions, these exemptions are narrowly defined and very hard for an employer to prove. An employer may attempt to take advantage of employees by classifying them as “executives”, “administrative” and “professional “and thereby avoid paying overtime pay, even though the employees’ responsibilities would not entitle them to such a classification. Therefore, you should consult with an FLSA attorney at the Law Office of George T. Peters, PLLC to determine whether you are properly classified and whether you are receiving proper overtime wages.
Salaried employees not being entitled to overtime pay is a common misconception. In fact, many employees who earn less than $100,000 per year are entitled to overtime pay. As with minimum wage violations, employers attempt to mislead their employees in order to avoid paying lawfully earned wages, such as overtime pay. Furthermore, you are entitled to payment for all hours worked; employers often violate FLSA provisions by requiring an employee to report to work early and leave late, and unfairly refuse to acknowledge this time on employee timesheets. Regardless of whether you are “clocked in” or not, if your employer requires you to be working, you are entitled to be paid for those hours. If your employer has engaged in any of the unlawful activities described above, please contact the FLSA lawyers at the Law Office of George T. Peters, PLLC to schedule a free consultation. You may be entitled to back pay – wages owed but not received – and are likely entitled to liquidated or double damages where your employer did not act in good faith. The law provides for only a limited time to bring a lawsuit, so if you believe that you have not be paid proper minimum wage or have wrongfully been denied overtime pay, do not delay and consult with one of our attorneys for assistance with your legal needs.

Hourly Employees

If you are paid by the hour, you must be paid time and one-half for all hours worked over forty (40) hours per week. For example, if your hourly rate is $20 per hour, you should be paid $30 per hour for each hour worked over 40 hours that week. If you are paid only your regular hourly rate, rather than time and one-half, you are entitled to the difference between what you were paid for overtime hours worked and what you should have been paid. Also, please note that it is illegal for your company to offer you “comp time” or time off instead of paying your proper overtime rate.

Salaried Employees

Many salaried employees earning less than $100,000 per year are entitled to overtime pay. Unfortunately, salaried employees are often taken advantage of and led to believe that they can be made to work overtime for no extra pay. In such a situation, your employer is either misinterpreting the law or deliberately attempting to underpay you. If you are a salaried employee working overtime hours, we advise you to keep track of the hours you work in a journal or calendar. This information may help you demonstrate your hours of employment if a lawsuit is filed. While your company may give you a title such as “vice president” or “assistant manager” to avoid paying overtime, keep in mind that your title does not dictate whether or not you are eligible to receive overtime pay. Salaried employees typically entitled to overtime pay include, but are not limited to: back office financial employees, account executives, analysts, researchers, customer service representatives, computer help desk and trade support employees.

Wage And Hour Violations

Minimum wage is currently $7.25 per hour under Federal Law and between $11.10 and $15.00 per hour under New York Law, depending on your employer and location, as of December 31, 2018. While there are limited exceptions to this requirement, most “employees” are entitled to the full minimum hourly rate and are also entitled to one-and-a-half times their hourly wages for each hour worked over forty (40) hours per week. For example, if you are paid hourly, and your hourly rate is $15 per hour, your overtime rate is $22.50 per hour. If you are only paid straight time (your regular hourly wage) for all hours over forty (40) in a work week instead of time and one-half, you will be entitled to the difference between what you were paid for overtime hours worked and what you should have been paid. Many salaried employees are also entitled to overtime even though the companies they work for have misled them to believe that they are exempt, and not entitled to overtime pay. Wage and hour violations can take many forms in addition to failure to pay minimum wage or overtime. For example, the law prohibits your employer from taking deductions from your pay that are not for your benefit. This means that if your employer is deducting money for mistakes, uniforms, chargebacks or disciplinary violations you may have a claim. You are entitled to be compensated for all hours worked even if you perform work “off the clock,” before or after your shift. If you work more than ten (10) hours per day, you may be entitled to an extra hour of pay. It is unlawful for your employer to make deductions from your paycheck, even if you make a mistake. Also, under the New York State Wage Theft Prevention Act, your employer must, at the end of each pay period, provide you with a statement showing your rate of pay, the basis for your rate of pay (whether hourly, salary, shift, day, week, piece, commission, and allowances); the amount of gross wages, wage deductions (if any) and the net wages paid. Failure to provide you with this statement is a violation of law and may entitle you to additional damages. Certain types of employees are often paid incorrectly, due to the nature of the work they perform. Two such types of employees are restaurant workers and commissioned employees, such as salespeople and loan officers:

Restaurant Workers

Employees hired to work in a restaurant are likely entitled to the full minimum wage of $13.50 to $15.00 per hour in NYC, $12.00 per hour in Westchester and Long Island, and $11.10 per hour throughout the rest of the State of New York. All hourly restaurant workers are likely entitled to time and one-half overtime for each hour worked over forty (40) hours per week. Even salaried restaurant workers, such as cooks, dishwashers, cashiers and hostesses are also entitled to time and one-half overtime for all hours worked over forty (40) hours per week. Please be aware that it is unlawful for management and back of the house employees such as cooks and dishwashers to receive any portion of tips, gratuities or a service charge. Employers may not charge restaurant employees for customer walkouts or breakages. Also, employers may be required to reimburse you for the cost of your uniform and cleaning charges. All restaurant employees are entitled to “spread of hours” pay, or an additional hour of minimum wage for working either over 10 hours per day or a split-shift. Restaurant workers who work at catering halls, country clubs or locations where private events are held are commonly paid incorrectly. For example, if the catering hall, country club or restaurant charges a 20% service charge or gratuity, those funds should be paid in their entirety to the service staff. It is likely illegal for the company to retain any of those service charges or gratuities. Employees must be aware that they can file a claim for these violations dating back 6 years under the New York Labor Law.

Commissioned Employees

Commissioned employees are entitled to minimum wage for all periods that they do not earn a commission and most commissioned employees are also entitled to time and one-half overtime for all hours worked over forty (40) hours per week. New York employers must provide employees with a commission agreement that is in writing and signed. When you leave your company, you are generally entitled to your earned commissions from all customers that have paid your employer. Examples of commissioned employees who are not paid properly include loan officers, underwriters, car salespeople, account executives and salespeople who work inside an office. All workers in New York are protected by both the New York Labor Law and the federal Fair Labor Standards Act (FLSA). Violations of wage and hours laws may result in the award of liquidated damages and double damages under each of these acts. New York State allows employees to seek recovery of unpaid wages dating back six (6) years.
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