WAGES AND OVERTIME
Wage and overtime are perhaps two of the most important employment
law topics from the perspective of a worker. Workers want to know
that they are properly compensated for time spent working. They may
also be concerned about how to file a complaint in the event their
wage and overtime rights are violated.
Employers must be up to date on the latest rules and regulations
including the classification of workers as either Independent
Contractors or full time employees.
When Jaws are properly observed, wage and overtime issues are seldom
a problem, but when the laws are violated, these issues loom large
for workers forced to forfeit adequate pay for the time and energy
expended at work.
WHERE DOES WAGE AND OVERTIME LAW ORIGINATE?
Wage and overtime laws originate in the Federal Labor Standards Act
(FLSA). The country's Wage and Hour Division (WHD) handles the
enforcement of the FLSA and oversees proper handling of a number of
other measures as well, including child labor and unemployment
insurance. The Wage and Hour Division is a smaller part of the
Department of Labor which ensures adherence of all federal labor
RECEIVING ADEQUATE WAGES
The FLSA sets basic federal minimum wage standards. Current federal
minimum wage is $7.25 per hour. However, some states have a
different pay threshold. New York minimum wage as of December 31,
2015 is $9.00 per hour. This amount can vary depending on the
industry as to New York City's "Living Wage Law" for those
working under a contract with New York City, the new living wage
rate for the period between April 1, 2016 and March 31, 2017 is
$11.70 per hour with health benefits or $13.40 per hour without
Although the FLSA sets the federal minimum wage, it does not cover
other wage issues such as severance pay. It
merely ensures that every
employer must abide by a general rule for the least amount of wages
a worker must receive. If the minimum wage standard is not properly
observed, an employer could be liable for back pay of up to 2-3
years, depending on the circumstances of the case.
RECEIVING PROPER OVERTIME PAY
The general rule for overtime is that overtime pay must not be less
than one and a halftimes regular pay. Generally, overtime pay kicks
in for any amount of time spent working beyond the regular 40-hour
work week. However, it is important to note that not all workers are
eligible for overtime pay. For instance,
workers who would be classified as management are generally
not eligible. Additionally, certain businesses and industries are
exempt from the overtime pay rules outlined in the FLSA.
WAGE AND OVERTIME COMPLAINTS
Wage and overtime issues arise when an employer fails or refuses to
compensate a wage worker for time spent working. In these cases,
there are two ways an employee can address the
issue: 1) file a complaint 2) file a lawsuit.
Wage and overtime complaints are filed with the Department of Labor's
Wage and Hour Division. Over 200 WHD offices around the country
offer free and confidential assistance for filing wage and overtime
complaints. The complaint forms often must be accompanied
by additional documentation such as pay stubs and personal
records of hours worked. The complaint may initiate an investigation
and conclude with a determination by the Division based on the
information presented and gathered.
In addition to filing a complaint, an employee may also file suit
against an employer in a court of law. The purpose of a suit of this
nature is to recover back pay or lost wages due to the employer's
violation of wage and overtime laws. When violations are found,
employees are eligible to receive compensation for up to 2 years of
back pay or 3 years if the violation was willful.
DON'T LET WAGE AND OVERTIME ISSUES GO UNADDRESSED!
If you think your employee rights have been violated or an employer
who needs assistance in determining the legal minimum wage for your
particular industry, contact Eugene F. Levy at (718)261-7900.
INDEPENDENT CONTRACTOR LAWS AND STATUS
Are you an independent contractor or an employee and does it make a
Whether a worker is an "employee" or an "independent
contractor" makes a big difference. Independent contractors are
not entitled to many benefits that must be offered to employees,
such as overtime pay, health and pension benefits, social security
credits, protection against discrimination and unemployment
insurance. Some employers wrongly classify their workers as
"independent contractors" to avoid providing those
is in your best interest
to know whether you are properly classified as an employee or
Recently, there have been some noteworthy cases where employers
mistakenly classified employees as independent contractors. In one
case the company agreed to pay $19.5 million to 292 agents who
claimed the company wrongly changed their status from "employees"
to "independent contractor". In another case a company
agreed to pay $96.9 million to employees who contended that they
were not temporary, independent contractors but really permanent
employees of the company.
Courts use different tests for workers for deciding different
issues, but there are some common principles. In wage and hour
cases, they focus on the following factors.:
- The degree of control employer exercises over the day-to-day work
- The amount of work the worker's investment in facilities and work
- The worker's opportunities for profit and loss;
- The degree to which the worker's independent initiative, judgement
and planning is necessary for the success of the worker's
- The permanency of the relationship between the employer and worker;
- The extent to which the services are a part of the employer's
- How dependent the worker is on the employer for continued work.
The courts will look to all the facts of a particular case and
compare them to the appropriate factors. Thus, the employees should
understand that an agreement that he or she is an independent
contractor, though important, will not decide the case. Employers
should be aware of the costs of classifying an employee incorrectly.
To make sure there is compliance with the law call Eugene F. Levy
Wrongful termination occurs when an employer unlawfully fires or
discharges an employee. Wrongful termination can happen even in
states that follow the employee at-will doctrine which gives an
employer the right to fire an employee for any reason, at any time.
EXCEPTIONS TO THE EMPLOYMENT AT-WILL DOCTRINE
According to the employment at-will doctrine, an employee can be
fired for any reason. However, the doctrine contains a number of
exceptions. First, the doctrine does not apply when an employee's
termination has caused a public policy violation. This means that the
termination is beyond the boundaries set by social norms for fair
employment interactions. For instance, an employee cannot be fired in
most states because he refused to break the law at an employer's
request or because he took time off to vote.
BREACH OF EMPLOYMENT CONTRACT
Another way that a wrongful termination claim can arise is due to the
breach of an employment contract. An employment contract is most
often written, but it can also be implied, with a breach occurring
based on the facts and circumstances surrounding an employment
When a written contract is used to establish employment, a breach
leading to wrongful termination can occur if the contract contained
provisions detailing the length of employment or setting a specific
term for employment. If an employee is fired in violation of these
terms, it may result in a successful wrongful termination claim.
When a contract is implied, courts will analyze the behavior, conduct
and circumstances surrounding the agreement to determine whether 1) a
legal contract existed and 2) the contract was breached resulting in
To get the help of an experienced attorney contact the Law Offices of Eugene F. Levy. (718)261-7900.
JOB DISCRIMINATION IN WRONGFUL TERMINATION CLAIMS
Beyond public policy violations of the employment at-will doctrine
and breach of contract claims, a wrongful termination case could also
arise from job discrimination. Federal and state law prohibits
discrimination in employment based on certain protected categories,
including race color, national origin, sex, age, religion and
disability. These laws affect all areas of the employment process
When an employee can prove that his or her termination came as a
result of unlawful job discrimination, an employer could be held
liable for violation of civil rights laws designed to protect workers
by ensuring they are treated equally on the job.
For Experienced legal representation to help you navigate through the
complex issues of a wrongful termination call the Law Offices of
Eugene F. Levy, Esq. (718)261-7900.
Sexual harassment is an illegal form of sex discrimination covered in
both federal and state law. In particular, Title VII of the Civil
Rights law prohibits sexual harassment across the nation. The law
applies to companies with 15 or more employees, and is enforced by
the government agency, the Equal Employment Opportunity Commission
Two types of legal violations under Title VII can occur with sexual
harassment. First, when an employer makes sexual acts or favors a
condition of employment, courts refer to this as quid pro quo sexual
harassment. This type of violation is typical, for instance, when an
employer fires an employee for rejecting unwelcome sexual advances or
refuses to promote an employee unless she agrees to become sexually
Additionally, some forms of sexual harassment become illegal because
they create a hostile work environment. This occurs when behavior and
conduct of a sexual nature is so severe and pervasive that an
employee is prevented from performing his or her job duties. Both
types of violations can occur to women or men and are not specific to
Hostile work environment cases are not limited to direct victims of
sexual harassment in the workplace. They may also involve third party
witnesses to the sexual harassment who prove the harassment is so
severe that it prevents them from effectively doing their job. It's
important to note that infrequent or random remarks of a sexual
nature may not be deemed sexual harassment for purposes of the law,
even if they are sexually explicit or offensive.
SEXUAL HARASSMENT AND RETALIATION
Sometimes an employer decides to retaliate against an employee who
has complained about sexual harassment. The employer could be liable
for doing so if the employee sufficiently proves that her employer
took adverse action against her due to her complaint. The illegality
of retaliation would also apply if an employee filed a charge with
the EEOC or participated in court proceedings involving an employer's
sexual harassment and subsequently experienced adverse action.
REMEDIES TO SEXUAL HARASSMENT IN THE WORKPLACE
A number of remedies are available to employees who successfully
claim sexual harassment in the workplace. A major remedial measure is
back pay. When an employee has experienced emotional harm due to
sexual harassment, they may receive compensatory damages.
Additionally, employees could be hired, promoted or reinstated based
on particular sexual harassment claims. Beyond these, attorney's fees
and court costs could also be covered by a successful suit.
To get the help of an experienced attorney contact the Law Offices
of Eugene F. Levy. (718)261-7900.
Age discrimination becomes an issue when employees over the age of 40
experience unfair treatment on the job based specifically on age.
Such treatment is illegal under both federal and state law.
Specifically, the Age Discrimination in Employment Act (ADEA)
prohibits age discrimination at the federal level. The Act applies to
companies with 15 or more employees and requires that employers
refrain from singling out workers over the age of 40 in the terms and
conditions of employment as well as in job advertisements.
Both federal and state law provides remedies for retaliation based on
age discrimination as well. The ADEA makes it illegal for an employer
to retaliate against employees who file age discrimination complaints
or charges or who participate in age discrimination court
ACTIONABLE AGE DISCRIMINATION
Illegal Early Retirement Deals
Early retirement deals, also known as golden handshakes, are not
always legitimate. When an employer bases these deals on the age of a
worker over 40, with no other legitimate business reason, a violation
of federal and state age discrimination law has occurred.
Illegal Employee Replacement
Employers commonly refresh their labor force by replacing workers on
a routine basis. However, when an employee over the age of 40 can
prove a replacement occurred specifically in order to hire or promote
a younger employee, he or she could have a case for age
discrimination under both state and federal law.
Illegal Wage Determinations
Violations of age discrimination laws can occur with any aspect of
employment. Particularly, with wages and salaries, an employer must
not make unfair wage determinations based on the over 40 status of a
worker. For instance, an employer may be liable for age
discrimination when it uses age to determine that an older worker
with higher pay due to seniority should be replaced with a younger
worker with less seniority.
Inequality in Job Benefits
In addition to the ADEA, workers also have federal protection against
age discrimination via the Older Workers Benefit Protection Act. The
Act requires employers to treat older and younger employees equally
in terms of the scope and amount of benefits received. Though
employers may be tempted to spend less on benefits for older workers
or offer less coverage than younger workers, both of these actions
If you are an employee who feels you have been discriminated against
because of your age or an employer who has received a complaint about
age discrimination, contact Eugene F. Levy, Esq. at (718)261-7900
With Disabilities Act (ADA)
The Americans with Disabilities Act is federal law which prohibits
discrimination on the job against workers with disabilities. This Act
is an extremely important form of protection for disabled workers,
who can often be the victims of exclusion and unfair employment
decisions and practices simply because they are disabled.
The ADA particularly prohibits discrimination in certain employment
situations. For instance, it is illegal for an employer to
discriminate in hiring and discharge decisions as well as in
employment practices such as promotions, compensation and job
training. Just about any discriminatory term, condition or privilege
of employment can be held illegal in a court of law.
"Qualified Individual with a Disability"
Under the ADA, an individual cannot receive the protection outlined
in the provisions of this laws unless he or she is a "qualified
individual with a disability." In other words, the employee must
be able to perform the duties of a job position. This provision
prevents employees whose disability precludes them from doing the job
in question from filing suits of discrimination when they are not
allowed to do the job. For example, a blind worker could not be a
land surveyor because his or she is not qualified for such a
position, and his exclusion from such a position would not be
Also, the laws only apply if the worker filing suit is actually
disabled, meaning the disability he or she has interferes with the
ability to work. Here, courts examine the influence a disability has
on the person's job and ability to earn income.
'Reasonable Accommodation' in Disability Discrimination Cases
Anti-discrimination laws often require an employer to provide
accommodation for specific categories of workers. When this
accommodation is not provided or is provided insufficiently, an
employer could be in violation of the law.
In the context of disability discrimination, the employer may need to
make changes to the work place or to workplace policy in order to
meet reasonable accommodation requirements. For example, an employer
may need to modify job duties, decreasing a disabled worker's
workload or providing more break time, in order for him to perform
job duties effectively.
important to note that accommodations are not without some
limitations. For instance, the law requires that in order to receive
accommodations, a disabled employee must first request it. The
requested accommodation must be reasonable and the employer has the
right to refuse requests that would cause undue hardship to the
If you think your rights as a disabled worker have been violated due
to a discriminatory act, employment decisions or employment practice,
or you are an employer who has questions about compliance with a
reasonable accommodation, request or complaint contact EUGENE F. LEVY
Discrimination based on sex or gender is illegal according to a
number of federal and state laws. When an employer treats someone
differently simply because they are a woman or because they are a
man, the employer is illegally practicing sex or gender
discrimination. The discriminatory treatment can take on a variety of
forms. For instance, an employee may be fired, demoted, lose a
promotion, or take a cut in salary due to his or her sex or gender.
Throughout the law the terms gender and sex are used interchangeably.
The main federal law that addresses sex discrimination is Title VII.
Title VII of the Civil Rights Act prohibits discrimination on the
basis of sex as well as on the bases of a number of other protected
categories such as race and disability. Beyond Title VII, state law
and other federal laws provide yet another layer of protection from
sex or gender discrimination.
BEYOND TITLE VII
Two other federal laws address sex discrimination: the Equal Pay Act
and the Pregnancy Discrimination Act. The Equal Pay Act ensures that
employers do not pay women different wages or salaries than other
employees. The Pregnancy Discrimination Act protects pregnant
workers. Both these laws and Title VII are enforced by a governmental
agency, the Equal Employment Opportunity Commission (EEOC).
When an employee has been discriminated against based on sex or
gender, the first step in making an official complaint based on
federal law is to file a charge with the EEOC. The EEOC investigates
claims of sex or gender discrimination filed under Title VII, the
Equal Pay Act or the Pregnancy Discrimination Act. If the agency
decides not to pursue an employee's case, it issues a right to sue
notice which gives the employee permission to file a sex
discrimination lawsuit in court.
Another form of sex or gender discrimination is sexual harassment.
Under Title VII, sexual harassment consists of unwelcome sexual
advances, behavior of a sexual nature or even requests for sexual
favors which significantly interfere with an employee's ability to
perform job duties or that create a hostile work environment. When
the harassment is made a condition of an employee's employment, this
is called quid pro quo sexual harassment.
RETALIATION AND SEX OR GENDER DISCRIMINATION
against the law for an employer to retaliate against someone who
complains about sex or gender discrimination. This means that whether
an employee decides to file a grievance through the company complaint
process, file a charge with the EEOC or other government agency or to
file suit in court, an employer may not take adverse action against
the employee in response to these acts.
If you are an employee who feels your rights have been violated or an
employer who has received a complaint you must act in a timely manner
to address these issues.
Contact Eugene F. Levy at (718)261-7900.
Both federal and state laws require employers to treat pregnant women
fairly. This means that employed pregnant mothers should be treated
the same as all other workers. When the equal rights of pregnant
workers are violated, employers could be liable for the damaged
Federal law protecting pregnant women is codified in an amendment to
the Civil Rights Act of 1964 called the Pregnancy Discrimination Act
(PDA). This act outlines the rules and regulations concerning
employer responsibilities as well as the rights of pregnant workers.
Employer Responsibility Under Pregnancy Discrimination Laws
Generally, employers have the responsibility to treat pregnant women
fairly. An employer may not refuse to hire pregnant workers based on
personal views about the inability of pregnant women to perform job
duties. Neither can employers curtail or extend maternity leave in
response to a pregnancy. Additionally, providing adequate
accommodations when reasonable and providing fair health benefits are
major requirements under pregnancy discrimination law.
Employers are prohibited from refusing to hire women based on
prejudices about pregnancy including the prejudices of supervisors,
co-workers, managers or agents. Also, it is against the law to refuse
to hire a pregnant worker due to a pregnancy related condition. These
prohibitions on pregnancy discrimination go beyond hiring to cover
all aspects of the employment process including termination,
promotions, compensation and benefits.
Pregnancy Discrimination And Maternity Leave
One of the ways that pregnancy discrimination can become an issue is
via maternity leave. Employers sometimes make unlawful requirements
concerning maternity leave which pregnant employees can address with
litigation. For instance, it is unlawful for an employer to require
that a pregnant employee remain on maternity leave until the birth of
her child under certain circumstances.
The basic rule is that an employer must afford a pregnant employee
the same type of leave as other "temporarily disabled"
employees. If an employer, for example has a policy in place that
will hold a job open for workers who are temporarily disabled for a
certain length of time, it must also hold the job open for a woman
temporarily disabled due to pregnancy for the same length of time.
also important to note that pregnant women are entitled to a certain
amount of leave under the Family and Medical Leave Act (FMLA). A
pregnant woman is entitled to 12 weeks of unpaid leave to care for a
newborn. Fathers are also entitled to this unpaid leave under the
provisions of the FMLA.
What if a Pregnant Employee is Unable to Perform Her Job Duties?
Ifthe reason a pregnant worker is unable to perform her job duties
qualifies as a type of disability regulated by the American
Disabilities Act (ADA), pregnant workers could have additional causes
of action to consider beyond those allowed in the PDA. Additionally
the ADA requires that employers provide accommodations at work such
as shifting work schedules or providing lighter job duties.
If you feel that you have not been treated fairly and are the victim
of discrimination because of your pregnancy contact the Law offices
of Eugene F. Levy, Esq. (718)261- 7900.
BREACH OF CONTRACT
Explanation of'At-Will' Employment
Any discussion of breach of contract begins with an explanation of'at
will' employment. This term describes the fact that an employer has
the right to hire or fire someone for any reason with or without good
cause subject to certain exceptions.
However, when an employer hires or fires someone based on certain
protected categories and characteristics, it is a violation of
anti-discrimination law. These laws protect all employees from
discrimination on the job and apply to specific types of
discrimination known as protected categories. Typically, protected
categories include race, color, national origin, sex, religion, age,
disability and sexual orientation.
Also, the 'at will' employment doctrine does not apply when there is
a valid employment contract between an employer and employee.
ESTABLISHING THE EXISTENCE OF AN EMPLOYMENT CONTRACT
Employment contracts are created in one of three forms: implied,
oral, or written. Written contracts are important for breach of
contract and will be discussed in this section. For more information
about implied and oral contracts, please visit our related section,
When an employer breaks the contract it has created between employer
and employer, doing so is known as breach of contract.
BREAKING A WRITTEN EMPLOYMENT CONTRACT
Although written employment contracts are not common, they can be
breached when an employer decides to forgo following any of the
provisions within them.
Union employees, for example, work under a written union contract.
Union contract employees may sue for breach of contract, but must
first pursue all administrative remedies, including grievance
procedures, arbitrations and more. These are typically outlined and
defined in the terms of the union contract.
Executive contracts, often created in writing, can also be the target
of a breach of contract lawsuit if a company somehow reneges on its
offer of employment, terminates an employee against the terms of the
contract, or violated the terms of the contract in any other way.
These terms are the controlling factors in nearly all breach of
contract lawsuits. They establish the 'rules' that both employers and
employees must abide by in order to avoid breaking the law.
EXPLORING THE TERMS OF A WRITTEN CONTRACT
The provisions of a contract can be numerous. In fact, there is no
limit to the number of terms or conditions a written employment
contract may contain. Typically, an employment contract will contain
a length of service provision which dictates the duration of
employment. For example, where an employment contract contains a term
of five years for employment, the employee is under contract for that
time period and cannot legally quit or be fired, nor, in some
instances, can he work for another company.
However, it is possible for any term or condition to be associated
with certain exceptions listed also as terms of the contract. For instance, the common exception to a length of service
provision is termination for "good cause."
WHAT IS "GOOD CAUSE" FOR TERMINATION
When an employment contract contains an "good cause"
exception, an employee can be fired for any reason defined in the
contract as such. The definition of "good cause" in a
written employment contract is, then, extremely important, as it can
determine whether or not there has been a breach of contract based on
the terms of the agreement between an employer and employee.
The typical occurrence is that an employee under written contract
will sue his employer because he's been fired under the "good
cause" exception to the length of service provision in the
contract. The employee sues because he thinks there was no good cause
for his termination. Court will examine the terms of the written
contract to determine whether, according to the definition of "good
cause" in the contract, there was a breach in violation of the
DEALING WITH BAD FAITH BREACH OF CONTRACT
When an employer places unreasonable clauses within a contract,
whether written or implied, he could be dealing in bad faith. Bad
faith breach of contract occurs when an employer makes a clearly
unreasonable interpretation of the contract, thus violating its
For instance, an employment contract may contain a condition that
terminates employment when or if an employee removes company property
from the premises. Provisions like these are meant to prevent
stealing, and typically apply when an employee takes a piece of
equipment or confiscates company information.
If the employer fires a worker under this provision for taking home a
memo or letter this could be considered an act of bad faith. Clearly,
firing someone for taking home a memo is an unreasonable
interpretation of the contract provision.
BREACH OF CONTRACT DAMAGES
The big question in breach of contract cases is what can employer
recover in terms of damages. It
is important to note that
an employee can only recover the amount he or she would have earned
had there been no breach of contract. These damages are called
restitution damages since they are meant to make the employee "whole"
by placing him back in the position he would have been in had there
been no violation of the law.
This means there are only certain damages an employee may sue for
under breach of contract claims. It
is possible for an employee
to sue for lost wages and benefits. Also, an employee can sue for the
amount he or she would have earned in the future, minus the earnings
of a new job, considering he gets a job in reasonable time. However,
an employee cannot collect damages for emotional distress, though
this is, at times, a big influence in breach of contract cases.
If you believe your employment contract has been violated call the
law offices of Eugene F. Levy, Esq. 718-261-7900
Whistle blowing involves the public disclosure of wrongdoing, usually
by an employee. Retaliation by an employer is a key factor involved
in whistle blowing, which is why a number of laws and statutes, both
at the federal and state level, have been enacted to protect whistle
blowers. Also. Whistle blowing is considered valuable to the public
interests as it
can reveal information
necessary for the punishment of crimes about which authorities or
officials would otherwise remain unaware.
LAWS GOVERNING WHISTLE BLOWING VARY
United States law contains a wide variety of regulation and statues
which address whistle blowing. This mixed bag of legislation
generally condemns retaliation from employers motivated by an
employee reporting fraud, misconduct, safety violations,
non-compliance or other unlawful behavior.
When an employee is discharged for Whistle blowing , the issue of
at-will employment arises. The at-will employment doctrine allows an
employer to terminate employment for any reason at any time. It
basically means that,
absent an employment contract with provisions dictating otherwise,
there are no specific durations of employment guaranteed in states
which abide by the doctrine. New York is an "at will"
However, the employment at-will doctrine is not without exception. In
fact, the doctrine contains public policy exceptions which include
at-will whistle blowing employees. These public policy exceptions
have been carved out by the courts and legislation and vary from
state to state in their application.
Many of the laws addressing whistle blowing are enforced and governed
by the Occupational Safety and Health Administration (OSHA). These
include the Occupational Health and Safety Act, the Clean Air Act,
Section 402, of the Food Safety Modernization Act and Section 1558
of the Affordable Care Act (Obamacare). These laws cover employer
retaliation in the form of a number of adverse personnel decisions
including blacklisting, denying overtime, and promotion, suspension
WHISTLE BLOWERS ALSO PROTECTED FROM DISCRIMINATION.
Many of the laws concerning Whistle blowing employees also prohibit
discrimination as a result of a whistle blowers act of reporting or
highlighting information about an employer's misconduct.
WHISTLEBLOWER PROTECTION ACT OF 1989
This act is one of the main laws that protect Federal Whistleblowers
who work for the government and report agency misconduct. A federal
agency violates the act if agency authorities take (or threaten to
take) retaliatory personal action against any employee or applicant
because of disclosure of information by an employee or applicant.
Whistlebowers may file complaints that they believe reasonably
- A violation of a law, rule or regulation;
- Gross mismanagement;
- Gross waste of funds;
- An abuse
- A substantial and specific danger to public health or safety.
RETAIN KNOWLEDGEABLE COUNSEL
Because the whistleblower law can be complex, the help of a qualified and knowledgeable attorney who is up to date on the constantly changing laws and rulings is critical
Call the Law Office of Attorney Eugene F. Levy today. (718)261-7900