Hot Topic - Your Rights Before You Work

You may already know that you have certain rights on the job to be free from unlawful discrimination, to be paid minimum wage and overtime if you work in an eligible position, and to receive medical and family leave. But you may not know that you have certain rights even before you accept a job. Finding a job be challenging, but legislatures around the country are working to make it a little fairer for millions of Americans looking for work.

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Hot Topic - Wages for Waiting

Employees must be paid for work they perform. It seems pretty simple, but in employment law there are always complicated situations and circumstances that cannot be decided by bright-line rules. Even the question of when an employee is considered “working” can be difficult to answer when workers are waiting, “on call,” or on a break, even if they are not actively working.

It is commonly said in the caselaw that employees are entitled to wages for time spent “engaged to wait” but are not required to be paid for time spent “waiting to be engaged.” But what does this mean?

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Q+A - Discrimination, Harassment and Retaliation

By far the most common questions our firm receive involve discrimination, harassment and retaliation. Many people believe that discrimination, harassment and retaliation in the workplace are simply and wholly illegal and that if they have been singled out in any way, they have an actionable legal claim. It’s easy to understand where this misconception stems from, since often times news stories about lawsuits and big verdicts and settlements state that the plaintiff alleges discrimination without explaining the legal underpinnings of these claims. The following questions and answers are intended as a general guide only, and we at Pelton & Associates are always happy to answer any and all questions you may have about these issues and your own workplace experiences.

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Updates: Intern and Cheerleader Wage Lawsuits

As we have discussed in previous posts, two of the biggest trends in employment law these days are FLSA lawsuits for minimum wage and overtime filed by cheerleaders and interns. These two groups of people have a lot in common: they’re often young, working extremely hard for little or no pay, hoping that their experience will translate into connections for future paying work and passionate about their industries. Another element they share is the widespread assumption until one or two years ago that, for many of these reasons, they did not deserve to be paid minimum wage or overtime. There are of course many legitimate, educational and well-paying jobs in both fields, but there is also a huge opportunity for companies to take advantage of these young, inexperienced workers desperate to get out into the real world.

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Hot Topic - Classifying Drivers

Well-established business, like FedEx, and newcomers, like Uber and Lyft—both start-up companies that allow customers to hail a car from their phones instead of hoping to find a cab or calling a car service—are finding themselves facing some hard questions about how drivers should be paid. Drivers have filed lawsuits arguing that, even though they are classified as independent contractors, in reality they face enough restrictions and controls over their work that they should be paid as employees, which means receiving minimum wage, overtime and business expense reimbursements for costs like gas, auto repairs and uniforms.

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Need to Know - Tips and Service Charges

Under New York Law (NYLL § 196-d), employers are not allowed to keep any portion of employees’ tips, except for credit card charges, which are typically an extremely small percentage. This sounds simple enough, but where it gets complicated is when employers dispute what counts as a “tip.” An amount that a customer adds on the “tip” line of a credit card receipt or left as cash on a table is clear enough—although we at Pelton & Associates still all too often employers who simply grab part or all of employees’ tips. But what happens when a restaurant or catering business automatically adds a “service charge” to a customer’s bill? Where should that money go?

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Hot Topic - Sweeping Overtime Changes

Last year we announced that President Obama had ordered the United States Department of Labor to update overtime regulations. These regulations are hugely important, as they 1) set salary threshold for overtime, meaning that generally people who receive less than this amount are entitled to overtime, and 2) define the scope of overtime exemptions, meaning that even if employees earn more than the salary threshold, they may still be entitled to overtime depending on the nature of their work.

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Quick Hits: Employment Law from Coast to Coast

This has been an eventful summer for employment and labor laws and workers both at home and beyond our walls. At Pelton & Associates, we’re hearing about all kinds of wage theft and mistreatment of workers. The law can never cover every conceivable situation, and employers can be very creative about implementing new and perplexing pay practices. And around the country, there are big settlements in the headlines, important court decisions and legislation all coming together to improve workplaces and promote fair pay and fair treatment for workers.

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Hot Topic - White House Employment Agenda

As President Obama digs into his second term, it’s become clear that overhauling federal employment law is a top priority of this administration. From wages to discrimination and family friendly workplace policies, President Obama is working with the legislative branch and exercising his executive powers to enhance protections for workers around the country.

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Quick Hits: Good News for Workers Across the Country

There’s no doubt that employment law can be a challenging field, whether it’s the insidious expansion of employers’ powers to impose coercive arbitration provisions upon employees or the ever-increasing obstacles to certification of classes of victimized employees. But there’s good news for employees too in the form of court decisions and laws that stand up for the rights of hard-working everyday people.

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New Cases - What We’ve Seen Lately

At Pelton & Associates we’ve had a busy spring so far, and we have several new cases to show for it! This is just a sampling of the wide range of cases that we handle; employment law violations can occur at just any every level and every type of business. In our experience, employers say a lot of things to convince employees not to pursue an issue of improper wages, whether it’s “That’s how we’ve always done it” or “You receive a salary, you don’t get overtime.”

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Hot Topic - Student Workers

In recent years, hard-working and underpaid young people are rising up to assert their rights as employees. Whether as interns, research assistants or athletes, students work long hours making valuable contributions to businesses and universities without receiving the protections of employment and labor laws. As discussed in a previous post on unpaid internships, there are special questions that surround these issues, but all the factors and tests really boil down to one question: how much are student workers actually learning versus how much are they benefiting the business or university receiving their services?

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Hot Topic - Appearance Discrimination

Although the various federal, state and local laws regarding discrimination can be complex, the fundamental idea behind them is simple: individuals should be judged on the basis of their character and merits, not on innate characteristics (and to some extent, membership in certain groups). Anti-discrimination laws speak to many aspects of individuals that we notice and identify – or think we can identify – upon first meeting a person: race, gender, religion, age, pregnancy and disability. A growing number of jurisdictions are also banning discrimination on the basis of gender identity or expression, while some courts have found that discrimination based on gender identity/expression is a type of sex discrimination. In other words, a person who was born male but presents as a woman and is terminated from a job may be protected by sex discrimination laws since that individual suffered adverse consequences for not behaving the way some people expect males to behave.

As children, many of us are taught not to judge people based on the way they look. Yet appearance, apart from specified protected categories and a handful of jurisdictions, remains a legal basis for discrimination. Although appearance discrimination is prevalent throughout every aspect of public and private life, it is especially knotty in the context of employment discrimination because there may be legitimate business reasons for discrimination. Is appearance discrimination the last “acceptable” prejudice, or is it the next target for anti-discrimination legislation?

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Hot Topic – Unpaid Internships

In the past few years, interns at major entertainment companies have filed lawsuits against their employers for wages they should have earned for work performed during unpaid internships. Although unpaid internships are an important way for students and entry-level to gain invaluable experience, it is no secret that internships can be grueling, abusive, or simply free work for an employer. With the economic downturn, more and more companies are using unpaid interns to perform regular work for free, and desperate workers are taking these jobs, hoping that they will turn into full-time paid work or yield fruitful personal connections.

But companies cannot simply designate any position an unpaid internship. Since 1947, the law has required that unpaid training programs and internship meet certain basic requirements. Do these interns have a real case?

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Minimum Wage: Facts and Proposals

In President Obama’s 2014 State of the Union address, the president made clear that raising the federal minimum wage is a priority for his administration. Currently pending in Congress is the “Harkin-Miller Bill,” which would raise the federal minimum wage in three $.95 increments to $10.10 by 2016 and set it to rise automatically with the level of inflation.

Although there are different ways to measure the value of the minimum wage, it is clear that the real economic worth of the minimum wage has dropped significantly in the past decades compared to inflation, the buying power of a dollar, the poverty line, the average American wage, and the productivity of the American economy. In January 2014, over 600 economists signed an open letter to Congress and the President on behalf of the non-partisan Economic Prosperity Institute, explaining that raising the minimum wage by just $2.85 per hour will provide higher wages for almost 17 million workers and benefit another 11 million by increasing wages for higher-earning employees. These economists agreed that an increase in the minimum wage will have little negative effect on the jobs market and in fact could boost the economy by as much as 85,000 new jobs.

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Matusick v. ECWA – Right to Intimate Association Upheld

Decided: Second Circuit, January 6, 2014.

In this case, involving racial discrimination, a hostile work environment and ultimately termination, the Second Circuit affirmed the right to intimate association free of racial discrimination. The Plaintiff, Mr. Matusick claimed, and a jury agreed, that one of his supervisors and several co-workers had engaged in a prolonged campaign of severe racial discrimination against him based on the romantic relationship between Mr. Matusick, a Caucasian man, and Ms. Starks, an African-American woman. The offenders harassed Mr. Matusick and frequently used the “N” word against him, Ms. Starks, and Ms. Starks’s children.

Although the harassment was based on the color of the Plaintiff’s fiancée’s skin and not his own, the Court agreed that this conduct was illegal racial discrimination.

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Whistleblower Law – Protections Do Not Apply Overseas?

In 2009, Meng-Lin Liu, a compliance officer of Siemans China, began raising concerns that the company was engaging in corrupt practices related to the sale of medical equipment to hospitals. When Mr. Liu continued to express his concerns and attempted to implement anti-corruption procedures, he was demoted and barred from traveling to a compliance conference. In late 2010, Mr. Liu stated at a company meeting that compliance was low and that full compliance would reduce the company’s business drastically. Later that day Mr. Liu received a letter terminating his employment; subsequently, he reported the alleged violations to the SEC.

Had Mr. Liu worked in the United States, or had the bribes at issue involved American parties, he would likely be protected by the anti-retaliation provision of the Dodd-Frank Act. However, the Court in Liu v. Siemens A.G., 13-cv-317 (S.D.N.Y. 2013) found that the anti-retaliation provision only protects whistleblowers in the United States – even though the FCPA applies to all companies that issue securities (as defined in the statute), not just bribes involving Americans.

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Welcome to the blog of Pelton & Associates, PC. We are a law firm practicing largely in New York and New Jersey with the capability to represent clients around the country in both class actions and individual lawsuits. Our primary areas of practice are employment law, whistleblower law, and consumer claims, and we are always on the lookout to expand our practice in complementary areas. Our practice is the pursuit of workers’ rights in all the forms they take. In this blog, we will focus on news stories, court decisions and discussions relevant to our primary practice areas of employment law, whistleblower actions and consumer claims. The law is always changing and evolving, so check back frequently for our take on issues affecting employees and consumers around the country.

I have worked for Pelton & Associates as an attorney since August 2013. Previously I clerked for two magistrate judges in the Southern and Eastern Districts of New York, and I attended NYU Law. I find the practice of employment law incredibly rewarding in terms of the clients we are able to help, from white collar professionals to undocumented immigrants in construction and food service, and I’m very interested in exploring areas of law and policy that complement our workers’ rights orientation. As this blog will demonstrate, there is a lot to explore and discuss in employment law, and we look forward to hearing your thoughts and comments on these subjects!

Nothing posted to this blog constitutes legal advice. If you have a question about a specific employment, whistleblower, consumer or other legal claim, please contact the attorneys at Pelton & Associates for a free consultation.