{6 minutes to read} In addition to employment discrimination the firm practices wage and hour litigation. Wage and hour litigation is mostly comprised of two separate violations, minimum wage and overtime. The Fair Labor Standards Act (FLSA) and the New York Labor Law (NYLL) delineate the rules for employers regarding paying Minimum Wage and Overtime.Continue reading
Senators Kamala Harris and Pramila Jayapal have recently introduced the Domestic Workers’ Bill of Rights Act in an effort to provide federal protections to domestic workers. The lack of federal protections has contributed to the exploitation, harassment, and economic insecurity domestic workers face.
It is unclear if or when this bill would become a law. However, New York State has already passed its version of a Domestic Workers’ Bill of Rights. Analyzing this statewide Bill of Rights may provide some answers as to how extended legal protections help domestic workers, and where these protections fall short.
The Fair Labor Standards Act (FLSA), enacted in 1938, is the law that provides minimum wage and overtime protections to most workers. Initially, the FLSA excluded both domestic workers and farm workers. In the 1970s, following activism by several domestic worker organizations, Congress explicitly extended FLSA coverage to “domestic service” workers in 1974.
This coverage remains limited because Congress included many exemptions that leave domestic workers without much protection. For example:
In New York State, a domestic worker is someone who works in another person’s home to:
While a full-time live-in nanny may qualify as a “domestic worker” within the New York State definition, a casual babysitter would not receive the same protections nor would a person working for their own family members.
It is important to recognize that the law covers all domestic workers, regardless of their immigration status. Domestic workers do not have to fear that the government will deport them if they seek legal assistance or complain about illegal working conditions. Domestic workers are also protected from unlawful harassment and retaliation, which includes sexual harassment and harassment on the basis of gender, race, religion, or national origin.
The employer requirements in New York State aim to provide domestic workers with the minimum wage and overtime coverage that other workers already enjoy. Because domestic work is such a precarious employment situation, the requirements also speak to the needs of workers in this specific industry.
An employer of a domestic worker must:
Despite the extension of rights, it is still very common for workers to be paid “off the books” without access to the legally protected full wages or benefits. Moreover, persons who work as “home health aides” or “home care aides” are within the gray areas of the law. Nationally, home health aides are considered “companions for the elderly” meaning that they are exempt from the FLSA regulations governing minimum wage and overtime. In New York State, if home health aides work for an agency and not directly for the members of the household, they are not protected as “domestic workers.”
The Domestic Workers’ Bill of Rights provides coverage that recognizes the rights of domestic workers and addresses the unique challenges to preserving a professional environment within a home. However, the coverage of the bill could be improved for home health aides or “companions for the elderly” to ensure that those completing tasks that are essentially similar to domestic workers receive the same protections as domestic workers.
References:
New York Department of Labor. “Domestic Workers’ Bill of Rights”
The United States Department of Labor. “Home Care”
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1 The United States Department of Labor. “Home Care”
https://www.dol.gov/whd/homecare/faq.htm
2 New York Department of Labor. “Domestic Workers’ Bill of Rights”.
https://labor.ny.gov/legal/domestic-workers-bill-of-rights.shtm
3 New York Department of Labor. “Domestic Workers’ Bill of Rights”.
https://labor.ny.gov/legal/domestic-workers-bill-of-rights.shtm
James A. Vagnini
Partner
email: [email protected]
With the American economy in the midst of its worst downturn in decades, corporations are trying to squeeze that last buck out of every corner they can. Job satisfaction is going down across the board. One largely unsung issue that may be elevating to epidemic proportions is “Off the Clock” work.
For many, going unpaid for the work you perform for your employer is illegal. Many corporations in the U.S. are, unfortunately, asking their workers to buck up and work without minimum wage or overtime pay. This violates both New York and Federal law. The plain fact of the matter is that the laws are designed to protect during the bad times as well as the good. Just because there is not as much money to go around does not mean that it is all right to ask workers to work off the clock without compensation.
Full Time Employees in New York
For the most part, New York State follows Federal guidelines when it comes to minimum wage and overtime. If a non-exempt employee is performing work of any sort for their employer, they are to be paid at least minimum wage for their work. If they are working over forty hours in a work week, then any time worked above that is eligible for overtime pay. Live in employees may claim overtime after forty-four hours as well. Naturally, standard exemptions apply to certain types of employees, including certain interships.
However, a controversial case is brewing in New York that might potentially change how the law sees interns nationwide. An intern is suing Harper’s Bazaar, claiming that minimum wage is due to all intern workers and that internships are exploitive. We will follow this case closely and continue to report on its significant role in the wage and hour litigation world.
Full Time Workers That Receive Tips
If your employer claims that you are not entitled to overtime pay because you receive tips in your line of work (such as a restaurant server, delivery driver, dancer, etc.), then your employer is out of compliance with New York and Federal law. All work performed by these types of workers are subject to minimum wage and overtime law.
If you are a non-exempt, hourly worker, an employer cannot refuse to pay you time working off the clock. You are entitled to be paid for all hours work at minimum wage or an overtime rate if over 40 hours in a work week. If you feel you are being forced to work “off the clock” meaning you are not being paid for your time, then you should contact an attorney familiar with these laws immediately. For a free consultation, contact the law offices of Valli Kane & Vagnini, LLP at (866) 441-2873. You need a talented lawyer that is not afraid to take on exploitive employers that disregard the law.
Wages and the Law
Starting early in the new millennium, around 2003, article after article appeared in business journals telling businesses to brace themselves. These articles warned employers that if they have been misclassifying employees, and not giving them all the pay they have earned, they should expect wage and hour lawsuits. These articles, which appeared in high profile business journals such as the Wall Street Journal and Kiplinger’s, proved to be prophetic. Since 2003, wage and hour collective actions have exceeded employment discrimination class action lawsuits. One of the more common violations of wage and hour law is employers classifying an employee as “exempt” when in fact they are not. Exempt employees, as the name suggests, are not subject to certain wage and hour laws. When a salaried employee is misclassified as exempt, they are often unaware that they may be entitled to overtime pay. Many time, the misclassification by the employer is a method of saving a bundle in overtime and “off the clock” pay. While most states have a wage and hour law on the books, the federal law applied across the nation is known as the Fair Labor Standards Act (FLSA). Since the most visible impact of the FLSA has been on overtime, it is sometimes referred to as the “overtime law”. Besides overtime and off the clock work, areas covered by the FLSA are minimum wage, child labor, and equal pay.
Excemptions to the FLSA
As discussed, some jobs are exempt from the FLSA. Employees who legitimately fall into these exempt jobs are not entitled to minimum wage or overtime as long as the requirements for these exemptions are met. Examples of jobs excluded from overtime rules are movie theater employees, agriculture employees, and certain commissioned retail sales positions.
There are at least three major exemptions to the overtime law under the FLSA, the Executive/Management, Professional and Administrative Exemptions. Traditionally, the positions falling into these categories are classified as exempt, salaried positions. However, often they are not. The exemption that creates the most legal controversy is the Executive/Management Exemption. Many employers assume that if they classify an employee as management and that employee is salaried at a minimum of $23,600 per year, that employee is exempt. This is a misconception. In addition to the employee merely being classified as management, the employer has to demonstrate the employee is truly working in management and actually has authority and supervises at least two individuals. In fact, an employee is subject to a duties test to determine whether they fit into the exemption. This test involves meeting objective standards to determine if that employee is truly part of management and is not being passed off as management to avoid overtime pay and other FLSA requirements. If the test finds that an employee classified as management has primary duties not involving management, there has been a misclassification as a salary employee and that employee is not exempt from being governed by the FLSA. As such, such an employee would be entitled to be paid for any hours of worked performed over 40 in a work week at the rate of time and half. Under the FLSA, the employee is also entitled to liquidated damages equaling the amount of overtime pay withheld from the employee, as well as interest and attorney’s fees.
If you think you have been misclassified or are owed overtime pay or minimum wage, you can contact the U.S. Department of Labor, Wage and Hour Division or Valli Kane & Vagnini, LLP to learn what your rights are.
