You work hard.  You want to know that your employer is paying you what you have earned and is abiding by the laws governing workplace hours and overtime.  This can be tricky, though, because these laws are complicated.  If you have concerns about how your employer is handling wages, hours and overtime, this post should answer most of your initial questions and provide you with a base of knowledge to ask more complex questions.

What Laws Protect New York Workers With Regard to Wages, Hours and Overtime

The Fair Labor Standards Act (FLSA) is a federal law that sets minimum wage and hour standards for most American employees. New York State laws provide additional wage and hour protections.

What Is New York’s Minimum Wage?

New York State’s 2016 minimum wage is $9.70 per hour. Under state law, the minimum wage will increase annually until it reaches $15.00 per hour for most employees. New York City, Long Island and Westchester have slightly higher minimum wage rates. However, different rules apply if you are a tipped employee, a farmworker, or a residential employee.

Do Minimum Wage Rules Apply to All Workers?

New York’s minimum wage laws do not cover everyone. Independent contractors, for example, are not entitled to the minimum wage. Additionally, certain employees are exempt from the minimum wage, including:

• Most executives and professionals;
• Outside sales representatives;
• Taxicab drivers;
• Ministers and clergy members;
• Part-time babysitters; and
• Apprentices and students obtaining work experience.

What Qualifies as “Work” or “Work Time” in New York?

Under federal and state laws, you should be compensated for any hours you spend working – whether you are “on” or “off the clock.” For example, if your employer provides you with a mobile phone and knows you handle work calls after standard business hours, you may be entitled to compensation for this work.  While your commute to and from your workplace is not considered “work time,” you should be paid for travel in between different work sites.

Does My Employer Have to Offer Paid Breaks?

Most full-time workers are entitled to an unpaid half-hour meal break. New York law does not require shorter breaks (like coffee breaks). However, if your employer permits short breaks (under 20 minutes), then you should be paid for this time.

When Do I Become Eligible for Overtime?

If you are a non-exempt employee, you are entitled to overtime pay (even if you are salaried). Overtime is paid to eligible employees who work more than 40 hours in a single week. Overtime is not calculated on a daily basis. In other words, if you work one longer-than-normal shift, you are not entitled to OT unless your weekly work time exceeds 40 hours. Overtime is paid at a rate of 1.5 times your regular hourly rate of pay.

Who Is a Non-Exempt Employee?

Non-exempt employees are entitled to minimum wage and overtime pay. The U.S. Department of Labor (DOL) determines who is a non-exempt employee. In 2016, the DOL issued new rules that make an additional four million workers eligible for overtime in the United States. Although many “white collar” employees are exempt, the DOL evaluates eligibility based on your salary and duties. Do not assume you are exempt simply because you are a manager or administrator.

What Can an Employer Deduct From my Paycheck?

Your employer may deduct insurance premiums, taxes, court-ordered child support, wage garnishments, and union dues from your paycheck. However, it cannot charge you for other expenses, such as the cost of cash shortages, breakages, or required uniforms.

I Was Terminated. When Should I Receive My Last Paycheck?

If you were terminated or quit your job, you should get your last paycheck at the next regularly scheduled pay period.  

My Employer Violated Federal and New York Wage and Hour Laws. What Compensation Can I Receive?

If your wage and hour claim is successful, you should be compensated for your unpaid wages and overtime. You may be entitled to additional compensation (sometimes called “liquidated damages” or “punitive damages”) if your employer willfully violated wage and hour laws.

How Long Do I Have to File a Wage and Hour Complaint?

Most laws have strict notice and filing deadlines (called “statutes of limitations”). The FLSA contains a two-year statute of limitations; New York wage laws contain a six-year statute of limitations. If you believe you are owed back wages or overtime, contact the New York State Department of Labor or a wage and hour lawyer immediately. If you miss a deadline, you cannot receive compensation for your lost wages.

Contact A Bronx Employment Lawyer

The laws governing wages, hours and overtime are technical and complex.  It can be difficult to know which law applies to your situation, and even more difficult to figure out if your employer is abiding by the law or (knowing or unknowingly) violating the law at your expense.  A consultation with an experienced wages, hours and overtime lawyer is the best way to ensure your rights are protected and you are being treated fairly.  If you would like to talk about your situation, please call or email us.  We will respond promptly.

Who Is an Employee?

An employee is a worker who is under the direct control of his or her employer. Typically, an employee must comply with specific work rules and expectations. In exchange, the employer must pay wages and other benefits.

Employees have broad legal protections. Most employees are covered by:

• Wage and hour laws (including minimum wage and overtime rules);
• Discrimination laws;
• ERISA, the Affordable Healthcare Act, and other employee benefits laws;
• Unemployment benefits laws; and
• Workers’ compensation.

These benefits and legal rights are an important part of the employee-employer relationship.

An employer-employee relationship can exist even if the company calls you an independent contractor and gives you an IRS Form 1099, instead of a W-2. An experienced employee rights lawyer will consider a series of factors (sometimes called the “economic reality test”) when determining employee status. You may be an employee if:

• You are paid an hourly wage rate, salary, or a draw against future commissions with no requirement for repayment;
• You receive fringe benefits as part of your compensation package;
• The company sets your work hours and productivity expectations;
• You are provided with the tools and equipment necessary for your job;
• You have a direct supervisor who gives performance reviews and other assessments;
• You are forbidden from working for other companies or competitors;
• The company sets your rate of pay;
• You must attend mandatory meetings, training sessions, and other company events; and
• The company has the power to hire and fire.

Other factors may also come into play, depending on the facts of your case.

Additionally, you may be an employee even if you do not clearly meet this economic reality test. New York law recognizes that the following persons may be employees:

• An agent or commission-driver who delivers food or beverages;
• A full-time salesperson;
• Professional musicians and performing artists who work for a broadcast company, theater, or other venue;
• Professional models who have transferred use of their name and likeness to an agency who controls their assignments, hours of work, and place of work in exchange for compensation; and
• Some construction workers.

Who Is an Independent Contractor?

An independent contractor performs work for a company, but is not under its control. Although written contracts are common between independent contractors and companies, verbal agreements are also allowed.

An independent contractor has significantly more freedom than an employee. As your Bronx employee rights lawyer will explain, under New York law, you may be an independent contractor if you:

• Hold yourself out as business and accept other clients (including a client’s competitors);
• Have your own business cards, stationary, and marketing materials;
• Pay your own business expenses;
• Provide your own tools, equipment, and facilities;
• Have the power to refuse a company’s work;
• Set your own compensation rates;
• Decide what hours you work; and
• Are not directly supervised by the client or company.

Again, courts determine independent contractor status on a case-by-case basis. Your situation may involve other factors or considerations.

Hourly rates may be higher for independent contractors when compared to an employee’s wage rate. However, they are not entitled to other valuable employee benefits and protections. An independent contractor may not be entitled to:

• Minimum wage rates;
• Overtime pay;
• Unemployment benefits;
• Fringe benefits (like health insurance and pension benefits);
• Legal protections against discrimination; and
• Workers’ compensation benefits.

However, some laws include exceptions for independent contractors. For example, the New York State Human Rights Law (which prohibits employment discrimination) covers independent contractors “who are not themselves employers.”

What if I My Employer Misclassifies Me as an Independent Contractor?

As the “gig” or freelance economy has grown, more and more workers are categorized as independent contractors. This has led to genuine confusion about these workers’ legal rights. Increasingly, companies like Uber and Lyft face claims that their contractors are really employees.  

Other times, a dishonest employer will intentionally categorize an employee as an independent contractor to avoid wage and hour and other employment law obligations. This behavior is illegal and may result in strict criminal penalties and fines. The employee may also be entitled to compensation and damages.

Typically, an employee cannot waive his or her employment rights. A company also cannot change your employment status simply by having you sign a form agreeing to be an independent contractor. Even with a signed contract, the courts will apply the economic reality test.

In other words, do not assume that you are an independent contractor simply because your employer says you are. Instead, you should evaluate the terms and conditions of your work

If your employer misclassifies your work, you can file a complaint with New York’s Joint Enforcement Task Force. This task force enforces labor and employment laws and fights the misclassification of employees.  You also may have the right to file a lawsuit against your employer.

Contact Us

If you have questions about your status as an employee or an independent contractor, reach out to us. Our Bronx employee rights lawyers will assess your work situation, explain your rights, and help you pursue any legal remedies available to you.

Discrimination laws apply at every level of the employment process, from hiring to termination. Discrimination in hiring can be particularly insidious, however, because a prospective employee may not even realize that she lost a job opportunity due to discriminatory hiring practices. In this article, our Bronx hiring discrimination lawyers explain key concepts underlying these claims, so that you can better protect yourself.

Guiding Principles

Federal, state, and municipal laws protect New York employees and job applicants.

A prospective employer cannot base hiring decisions on an applicant’s race, gender, national origin, religion, disability, age, pregnancy, or genetic information. The law recognizes these categories as “protected classes.”

An employer must use neutral hiring practices that do not disproportionately impact a protected class. If employment tests and assessments are administered, they should focus on job skills and requirements, and should be a regular part of the hiring process for all applicants.

During the interview process, employers should ask neutral questions that focus on a candidate’s capability and fit within the organization. Questioning should be consistent from one applicant to the next.

Let’s look at some examples specific to the interview process:

What Questions Can an Employer Ask at an Interview?

During an interview, expect questions about your educational background, work experience and skills. You may be asked questions that assess your work ethic and interpersonal relationship skills. Depending on the job, you may also be asked about:

• Your willingness to travel or relocate;
• Your willingness to work weekends or flexible hours;
• Your ability to perform physical and mental duties of the job; and
• Your ability to fulfill the legal requirements of a job.

These categories of questions are lawful and not discriminatory.

If a characteristic or requirement is reasonably necessary for a job, it may be considered a “bona fide occupational qualification” (BFOQ), and you may be questioned about it during the interview. For example, a bartender may have to be at least 21 years old to serve alcohol, so the employer may ask age-related questions. However, stereotypical assumptions cannot be the basis for a BFOQ or any related interview questions. For example, an employer cannot assume a man is incapable of teaching kindergarten because of gender-based stereotypes or cultural preferences.

What Questions Cannot Be Asked at an Interview?

An employer cannot ask questions related to your membership in a protected class. For example, an employer cannot ask you about your:

• Ability to speak other languages (unless material to the job);
• Physical abilities (unless material to the job);
• Marital or familial status;
• Gender identity or sexual orientation;
• Age (other than to determine you are at least 18 years old);
• Family planning or whether you have children; or
• Race, ethnicity, or religious identification.

Sometimes, a question is clearly illegal: “Do you plan on having children?”

Other times, the approach is more subtle: “How did you get that scar?” or “Your accent is beautiful, where did you pick it up?”

If a prospective employer asks you an illegal question, you do not have to answer it. You can try to divert the interviewer or reframe the question or, if you feel harassed or threatened, end the interview and contact a Bronx hiring discrimination lawyer.

What Can I Do if I am Subjected to Discriminatory Hiring Practices?

If you believe you were denied a job for discriminatory reasons or were otherwise discriminated against in the hiring process, you have the right to file a complaint with a New York or federal fair employment practices agency. Once a complaint is filed, the agency will investigate the alleged discrimination. If it finds violations, it may file a lawsuit on your behalf. However, the agency may also opt not to prosecute the employer. In that case, you may receive a “right to sue” letter.  Upon receipt of this letter, you may proceed with a civil lawsuit.  Strict filing deadlines apply to both the agency complaint and the lawsuit, so it is important that you not delay in asserting your rights.

Contact a Bronx Hiring Discrimination Lawyer

While it can be difficult to prove hiring discrimination, it is a reality for many applicants. If you believe you have been subjected to discriminatory hiring practices, please call us or click “Contact Us,” above, to reach us by email. We can assess your particular situation, explain your rights, and guide you through the legal process.

Your employment discrimination lawyer will assist you with understanding how the law will protect you from being subjected to age discrimination.

A Bronx Employment Lawyer Will Explain Age Discrimination Laws in Employment

Both federal and state laws are in place to stop employers from being discriminatory against applicants and employees based on age. The most prominent law is the Age Discrimination in Employment Act. ADEA is a federal law that protects people who are age 40 and above from being discriminated against based on age. There is also a federal law known as the Older Workers’ Benefit Protection Act. With it, employers are not allowed to use age to discriminate with benefits and retirement. The ADEA does the following:

1. Prohibits employers from discriminating based on age during any step in the employment process. This includes when you apply for the job, while being interviewed, during the hiring process, when you are up for promotion, and when it is determined whether or not you should be terminated.
2. There cannot be age restrictions when: advertising for a job, conducting the application process, granting an interview, hiring a prospective employee, providing compensation, considering a promotion, disciplining an employee, and terminating the employee. There can be an age limit if it is a legitimate business necessity to consider age.
3. The employer cannot reduce your health insurance or life insurance if you are older.
4. Employers cannot discriminate against older employees when downsizing.
5. Employers cannot force you to take early retirement.
6. There can be no discrimination against you if you file, provide testimony, or participate in a claim based on ADEA against an employer.

How a Bronx Employment Lawyer Will Try to Prove the ADEA Violation

Your employment discrimination lawyer will tell you that it is difficult to prove that there was an act of age discrimination. In order to do so, the employee is required to show that there was an adverse action based on age. This can be shown through direct evidence, but there is rarely this type of evidence available. Simply being replaced by a person who is younger is not enough to prove age discrimination. It can, however, bolster your claim if there is other evidence to prove ADEA violations. The employer can only be found to have violated this law if you show that your age was the main reason for the action.

An Employer Can Request That an Employee Waive Rights Under the ADEA

Your employer has the right to ask you to waive your rights under the ADEA in exchange for considerations such as a severance package. There are certain conditions that must be adhered to prior to you agreeing to the waiver and the waiver being viewed as having been signed knowingly and voluntarily. The waiver must:

1. Be placed in writing and understandable to you.
2. Refer to rights or claims under the ADEA.
3. Not have any language that waives rights or claims that can occur in the future.
4. Let you know in writing that you should speak to independent counsel before signing the agreement.
5. Give you a minimum of 21 days to place the agreement under consideration and seven days to revoke it.

Contact an Experienced Employment Discrimination Lawyer

When facing age discrimination in employment, call (877) 440-0854 to speak to an employment discrimination lawyer at The Law Offices of Delmas A. Costin Jr.

Employment retaliation cases are inherently difficult to prove; seldom does an employment discrimination lawyer find the proverbial “smoking gun” as evidence. More typically, the case must be developed through circumstantial evidence.

Basic Considerations

The basic claim regarding retaliation involves the concept that an employer may not take a negative action against an employee in response to that employee engaging in what an employment discrimination lawyer describes as a “protected activity.” According to the US Equal Employment Opportunity Commission, a protected activity includes:

• Opposition to a practice believed to be unlawful discrimination
• Participation in an employment discrimination proceeding
• Requesting a reasonable accommodation based on religion or disability

Elements of a Retaliation Claim

To prevail on your lawsuit, your employment discrimination lawyer will need to prove four elements:

• You were engaged in a protected activity
• You suffered a negative employment consequence
• There was a causal link between your engagement in the protected activity and what your employer did
• You suffered measurable damages

Practical Considerations

Employers often disguise their true motivations; they will more often than not indicate the reason you were fired, for instance, was not because you of your age but because of poor performance. In addition, other forms of retaliation may not be as obvious as a job termination. For example, you may be treated differently at work after you complained about a certain practice. The question may than become, does the different treatment constitute a negative consequence?

Building Your Case

The first thing you must do if you suspect your employer is retaliating against you is to begin to document the events that demonstrate this fact. Write down things that are said to you and others. Look up prior communications regarding your performance, such as reviews or acknowledgements of past successes. It almost every case, you must allow your employer to correct the problem before taking legal action. This may entail speaking with your supervisor or a representative from the human resources department. If they do not adequately respond to your concerns, it may be time to seek legal counsel.

Contact a Bronx Employment Attorney for Legal Advice

Most employment is at will and the employer has a great advantage over the employee. However, there are limitations to an employer’s powers and protections for the worker. Understand your rights; call the Law Offices of Delmas A. Costin, Jr. for an employment discrimination lawyer at (877) 440- 0854.

Clients sometimes ask our Bronx employment lawyer how they can best prepare for a sex harassment deposition. Prior to the deposition, you will need to meet with your attorney to ensure that your clearly understand the key elements of the case. Your lawyer will discuss a case strategy with you and talk about what theories you need to prove in the case. He or she will review the jury instructions with you and clarify the main points. After he or she explains the legal strategies, your Bronx employment lawyer will tell your how the facts and the legal aspects of your case connect to each other.

Understanding the Scope of the Related Laws

While most people think that “harassment” is against federal law, anti-harassment only applies in specific situations. The government does not have an all-encompassing ban against harassment. Instead, Title VII only prohibits harassment against some discriminatory remarks that pertain to sex, religion, national origin, race and/or color. Even when the employee is allegedly a victim of sexual harassment, he or she will need to prove numerous points in order to win a case. For example, the jury will need to agree that the harassment was both unwanted and serious enough to meet the criteria.

Possible Jury Instructions in a Sexual Harassment Case

The plaintiff is requesting damages from the defendant due to a sexually hostile work atmosphere while working for the listed defendant. In order determine if the work environment was sexually hostile, the plaintiff will need to prove each and every point by a preponderance, or more than 50 percent, of the evidence:

• The plaintiff was subjected to verbal or physical sexual treatment or to sexual advances or other requests for sexual conduct;
• The conduct was unwanted;
• The conduct was serious enough to affect the terms of the plaintiff’s employment and to create a hostile or sexually abusive work environment;
• According to the plaintiff’s perception, the work environment was abusive; and

Another person in the plaintiff’s situation would also believe that the work environment was hostile or abusive. Furthermore, the jury will consider whether the totality of the situation constituted a sexually hostile work environment. The following factors will be considered: the frequency of the sexual conduct; the seriousness of the conduct; the nature of the conduct as to if it was offensive, threatening or demeaning; and if the conduct affected the employee’s ability to do his or her job.

Call Our Bronx Employment Lawyer

If you have additional questions about a sexually hostile work atmosphere, contact our Bronx employment lawyer at the Law Offices of Delmas A. Costin Jr. Call us at (877) 440-0854.

The wrongful termination lawyers at The Law Offices of Delmas A. Costin Jr. often help people who have been fired from their jobs. While employers are allowed to fire employees for almost any reason, there are certain circumstances under which a termination will be deemed to be wrongful and forbidden by law.

Rights All Employees Have

Even if your termination was legal, you still have certain rights. You have the right to continue your health insurance coverage out of pocket. You also have the right to receive your final paycheck following your termination within a specific time period. Some people also are entitled to receive severance pay, while others might qualify for unemployment compensation benefits.

Situations That May Be Wrongful Terminations

New York is an at-will employment state, which means employers are able to fire you for almost any reason. This right is limited, however, if certain conditions exist.

1. You Have An Employment Contract

Your work may be governed by either an explicit or an implicit contract. If you have an explicit written employment contract, the steps that are outlined in it for your firing must have been followed. Even if you do not have an explicit contract, an implicit one may have been formed. Courts determine whether an implicit contract existed by considering several factors, including how long you were employed at your company, whether your employer had regular employment practices that they failed to follow in your termination and whether ongoing employment was promised to you.

2. Your Termination Was in Violation of Public Policy

Even in the absence of a contract, if your firing is deemed to be in violation of public policy, it may be deemed to be a wrongful termination. Your Bronx employment lawyer may be able to help you under this category if you were fired for responding to a subpoena for jury duty, you were fired because of military service or your refusal to do illegal activities demanded of you by your employer.

3. Your Firing Was Due to Discrimination

Under both federal and New York state law, employers are forbidden from firing employees on the basis of their protected status. These statuses include your race, gender, disability, national origin and religion.

4. Your Employer Fired You in Retaliation

If you were fired for filing a complaint about such things as sexual harassment or workplace discrimination, your Bronx employment lawyer may be able to file a claim for wrongful termination based on retaliatory discharge, which is also prohibited. Other types of complaints that may form the basis for a retaliatory discharge action include reported Occupational Health and Safety Act, or OSHA, violations or your employee’s illegal activities.

Your Final Paycheck

After you have been terminated, the state mandates that you are paid the remaining compensation owed to you within a set period of time. Under N.Y. Labor Laws § 191, your employer must provide you with your final check on the next scheduled pay day following your discharge.

Severance Pay

Employers are not mandated to provide severance packages to employees under the Fair Labor Standards Act, or FLSA. However, you will have the right to a severance package if you have a contract explicitly outlining one, if your employer’s policy manual outlines severance pay rights, if your employer has historically given them to other employees or if your employer promised one to you. Severance is in addition to your final check, typically offered in exchange for your agreement not to sue by your acceptance of it.

Keeping Health Coverage

Maintaining your health coverage without gaps is extremely important. If you had health insurance through your work, you have the right to continue your coverage for a specified period of time after you leave your employment if your company had 20 or more employees. The Consolidated Omnibus Budget Reconciliation Act, or COBRA, provides that you can continue your health insurance temporarily, but you will need to pay the entire cost of the plan, meaning your former employer will not be required to pay any portion of your monthly premium.

Unemployment Compensation

While unemployment compensation is not available to everyone, you may be able to receive it. After you are terminated, you can apply for it, and if you are deemed to qualify for the payments, you will receive them while you search for a different position. These payments will only replace a percentage of your former income. Currently, unemployed workers may receive payments for a base of 26 weeks, and it is possible for some qualified unemployed people to extend their eligibility for an additional 20 weeks if they have been unable to secure a job during their initial period. While at-will employment laws do limit some of your rights, you still have some. Understanding when to identify a wrongful termination is important. If you believe your termination was an illegal one, you might want to get help from an employment attorney.

Contact a Bronx Employment Lawyer

To contact the wrongful termination lawyers NY at The Law Offices of Delmas A. Costin Jr., call (877) 440-0854.

It is important to understand retaliatory intent, and your employment discrimination lawyer may be able to help you. Under the law, one important issue for a retaliation case is proof of the employer’s motive for engaging in the adverse employment actions. This is because a retaliation case requires retaliatory intent. Your employment discrimination lawyer can help determine if retaliatory intent can be proven.

Direct Evidence

The Supreme Court has still not directly addressed what constitutes direct evidence of discrimination. However, the Circuit Courts of Appeal have adopted some definitions of direct evidence, making it easier to prove retaliatory intent. For example, the Courts of Appeal hold that direct evidence exists when the decision-maker told the plaintiff that he or she would not be promoted because the plaintiff filed a charge of discrimination with the EEOC, if the employer adopted a written policy forbidding the hiring of Asians and an Asian plaintiff was not hired because of this policy, or if the decision-maker admitted to refusing to promote a plaintiff because the plaintiff refused to have a sexual relationship with him or her. In some cases, the Courts of Appeal would also find direct evidence of discrimination where the decision-maker discriminated against the plaintiff’s class. For example, if a decision-maker refused to promote a woman to the position of vice president because the decision-maker did not believe a woman could be qualified to hold that position, that would be discrimination. If the president of a company informed his or her subordinates that he or she did not want them to hire African-Americans, and one of the subordinates hired a Caucasian over an African-American as a result, that would be discrimination. Firing an employee shortly after the employee went over the decision-maker’s head to report sexual harassment would also be discrimination if the decision-maker had previously warned employees that he or she would fire them if they bypassed him or her with complaints.

Contact an Employment Discrimination Lawyer

For more information on how an employment discrimination lawyer can help you, contact the Law Offices of Delmas A. Costin Jr. at (877) 440-0854.