New York Overtime and Tip Sharing Laws: Do You Know Your Rights?

There are hundreds of laws, both state and federal, that govern the employer-employee relationship in New York. As an employee, it is essential that you understand these laws and their respective requirements so that you protect your legal rights and take home the wages you have earned. When an employer fails to follow the law, the employees are the ones who suffer. Even if an employer’s failure to follow established regulations is not malicious, you may be able to file a claim and receive back wages or other relief.

Many salaried employees mistakenly believe that they are not entitled to overtime pay. However, unless an employee works in a position that is specifically exempt from overtime regulations, that employee is entitled to overtime pay of one-and-a-half times his or her rate of pay. The Department of Labor website clearly delineates which positions are exempt from overtime. For example, teachers and professional employees are exempt from overtime laws. Therefore, if your position is not listed in these exemptions, you are entitled to overtime pay. If your employer has failed to pay your overtime, you may be eligible for back wages. Your employer may also be penalized for the failure to provide overtime pay.

Additionally, if a nonexempt employee works over 40 hours in a single workweek, overtime pay will apply for those additional hours. This applies regardless of whether the employee is salaried or hourly. However, employers and employees may disagree as to how many hours an employee worked in a week. For example, if an employee continued working during the lunch hour, there may be disagreement as to whether that hour counts as “work.” According to the Department of Labor, if an employee continues to work on breaks, the employee should be credited for that work hour.  In situations such as this one, an employee may be eligible for a significant amount of back wages.

Earlier this year, substantial changes were made to overtime laws. Previously, one of the overtime exemptions included “high-level” workers. Whether an employee was “high-level” depended on that employee’s job description. However, since job descriptions vary significantly, and because a job description is at the discretion of the employer, the Department of Labor decided to instead focus on salary to determine whether someone is entitled to overtime pay or not.  Accordingly, as of December 1, 2016, if a nonexempt employee makes less than $47,476, that employee will receive overtime pay. Previously, the threshold was $23,660.

If you depend on tips for a portion of your salary, you should also be aware of certain regulations that govern this type of pay. According to the Department of Labor, a tipped employee is one who usually receives over $30 in tips each month. If your employer requires tip pooling, only employees who typically receive tips are supposed to pay into the pool and share. For example, in a restaurant, a hostess would not be eligible to receive any money from a tip pool, because she normally does not receive tips from customers. Employers, including members of management, are also prohibited from dipping into the pool. If your employer takes a portion of your tips, you may be able to file a claim.

Contact the Bell Law Group, PLLC To Learn More About Your Legal Rights

If your employer has possibly committed wage and hour violations, you need to hire an attorney who understands all fo the applicable state and federal employment laws. At Bell Law Group, PLLC, our attorneys are experienced in private employment claims. We offer a free consultation and have offices in New York, Florida, and Washington, D.C. To schedule your consultation, call (855) 333-2889 or contact us.

New York Wage and Overtime Lawyer Highlights Strategies Employers Use to Engage in Wage Theft

New York Wage and Overtime Lawyer Highlights Strategies Employers Use to Engage in Wage Theft

Although New York workers are protected by federal, New York State, and New York City laws that impose overtime, minimum wage, and prevailing wage requirements, the practice of wage theft and other forms of wage and hour exploitation occurs all too often.  Many workers are deprived of thousands of dollars each year because they do not realize their employer is engaged in unlawful practices to systematically deprive employees of the compensation required by applicable law.  In other cases, workers recognize that they are being cheated, but they fear reprisals from their employer if they assert their legal rights.  Our New York wage and overtime lawyers have highlighted some of the common practices companies use to deny workers the pay they are entitled to under the applicable law.

Misclassification as Exempt: A significant number of workers stay late, come in on weekends, and regularly put in ten hours or more per day without receiving overtime pay.  Workers often acquiesce because their employer misclassifies them as exempt by applying labels like “manager,” “supervisor,” “vice-president,” or a similar title.  This type of designation by an employer does not determine eligibility for overtime.  All non-exempt employees are entitled to receive time and a half for any hours worked over forty per week.  Employers are increasingly engaging in the tactics of giving computer technology and administrative workers a title and indicating they are salaried employees to avoid overtime requirements.  An experienced New York wage and hour attorney can evaluate your situation under the Fair Labor Standards Act to determine whether you have been cheated out of overtime pay.

Misclassification as Independent Contractor: Another misclassification strategy increasingly used by employers is to designate employees as independent contractors (ICs).  This approach is particularly insidious because ICs can be denied minimum wage, overtime pay, and other legal rights and protections.  Again, a company’s unilateral designation of workers as ICs or the existence of an IC contract do not dictate a worker’s status.  A range of factors must be considered that relate to the extent which the company exercises authority and control over the day-to-day activities of the worker.

Exploiting Immigration Status: Undocumented workers frequently are exploited because they do not understand they can take advantage of protections under certain employment laws.  Further, workers in this situation feel vulnerable to threats by their employer to assert immigration issues if workers sue for unpaid overtime or minimum wages.  However, workers have a right to receive overtime and minimum wages regardless of their employment status.  Courts also do not allow employers to rely on a worker’s immigration status as a defense during overtime or minimum wage litigation.

Improper Distribution of Tips: Because many workers in the food services industry receive tips, they are not covered by minimum wage requirements.  Some employers will attempt to skirt the strict rules about which workers can participate in tip pools, and how much of a tip credit can be taken.

Prevailing Wage: Tradespeople providing services under government-related contracts have extensive rights regarding wages even if they are not union workers.  Because many of these workers receive a significant wage, they do not realize they are deprived of income under prevailing wage standards.  Some employers presume that workers will not assert their right to prevailing wage because of concerns about jeopardizing their already significant hourly pay.

Wage and overtime laws under both state and federal law have many technical requirements with important exemptions.  If you think that your employer has engaged in wage theft by failing to pay you overtime or minimum wage, you should speak to an experienced New York employment law attorney.

New York ADA Lawyers Explain Why You Need Legal Advice before Facing ADA Litigation

New York ADA Lawyers Explain Why You Need Legal Advice before Facing ADA Litigation

Whether you have been sued for violation of the Americans with Disabilities Act (ADA), or you are concerned about the risk of costly litigation based on ADA compliance issues, you can protect your business and your personal assets by seeking sound legal counsel and tenacious representation.  Business owners face a growing risk of exposure to the potential cost and liability of ADA litigation with New York ranking among the three states with the highest number of ADA lawsuits filed against small businesses.  The attorneys at our ADA defense law firm offer legal advice for proactive business owners concerned about ADA compliance and strategies for avoiding “drive-by” or “tester” ADA lawsuits.  Given the rising number of lawsuits filed against business, property owners, and employers, our law firm recommends and assists our clients in implementing measures to mitigate compliance risks.

Importance of Understanding Key ADA Concepts and Standards

We recognize that the cost of compliance with the ADA can have a devastating impact on a company’s financial stability and success.  Our attorneys use our extensive experience to provide sound legal advice regarding our clients’ rights and duties under the complex requirements of the Americans with Disabilities Act.  Our goal is to help you avoid ADA litigation by carefully explaining relevant legal concepts in everyday English, such as:

  • Reasonable Accommodation
  • Program Accessibility
  • Disability
  • Readily Achievable Barrier Removal
  • Undue Hardship

Our lawyers explain these concepts and other relevant legal terms and standards while outlining the steps you need to take to mitigate the risk of litigation based on compliance issues.  The ADA accessibility standards, regulations, and enforcement guidelines are complex and constantly changing.  Employers and property owners need access to experienced ADA defense lawyers who can help you navigate this potential litigation minefield.

Defense Strategies for Avoiding or Prevailing in Litigation

When a commercial entity is in violation of the ADA, the best strategy is to make changes to bring the premises into compliance.  If the owner of the entity disregards a potential ADA “access” lawsuit, the financial consequences can be ruinous because the business will be shut down until the issues in the complaint are resolved.  The cost of non-operation exacerbates the financial hardships associated with the repair costs.  If the party bringing the lawsuit prevails, liability for the plaintiff’s attorney fees adds to the mounting cost of compliance.  Our law firm can work with you to identify potential ADA violations and to remedy potential problems so that you avoid the cost of litigation and the interruption of your business operations.

However, a commercial facility or place of public accommodation only has to comply with the ADA when “readily achievable.”  Our lawyers can analyze your financial situation and the cost of remedial changes, which might justify a defense based on the lack of financial feasibility of compliance.  Court have consistently ruled that a business does not have to incur costs that will force it to close its doors to comply with the ADA.

Whether we suggest proactive changes, a defense based on the “readily achievable” standard, or a different defense strategy, you can mitigate your risk of incurring litigation costs and prevent disruption of your business by seeking legal advice before becoming embroiled in ADA litigation.