Attorneys who represent workers trying to recover wages, like the ones at Leeds Brown Law, P.C. understand how hard it can be to challenge your employer when you think your paycheck is short. You may be worried your employer will fire you or retaliate against you in some other way if you ask for information about your hourly rate or overtime pay. This fear is not unfounded. Evidence indicates that some of the victims hardest-hit by unscrupulous employers are those who earn the lowest wages and are most vulnerable to intimidation.
Our attorneys know, and so should you, that it is unlawful for your employer to punish you or threaten you for inquiring about your wages or trying to secure the money you have rightfully earned. The laws that demand your employer pay you fairly for all of the hours you work, also prohibit retaliation.
When your employer does not pay you in compliance with the applicable laws, whether it is because of oversight or intention, you have the legal right to try to obtain the wages that belong to you. You can file an internal complaint or file an unpaid wage claim with the appropriate court or administrative agency. Wage and hour attorneys at Leeds Brown can assist you every step of the way and help determine the best course of action for your situation. If employers withhold wages from many workers, we are fully equipped to handle cases involving groups of employees. When it comes to recovering money for hard working New Yorkers, Leeds Brown has a track record of success in all types of wage and hour claims including unpaid overtime, minimum wage, tips and retaliation.
Any time your employer withholds earnings that legally belong to you, it is called wage theft or stealing wages. Wages are monies paid or received for work or services and they belong to the person who performs the work. If your employer is keeping a portion of your wages, or not paying you every penny to which the law entitles you, it is stealing.
There are legal withholdings that employers may take from wages such as money for unemployment insurance, social security, federal and state taxes. It is not wage theft when your employer makes these legitimate deductions.
Wage theft occurs when your employer takes money that it does not have the legal right to take or withhold. Some of the most common forms of wage theft include:
Wage theft occurs with great frequency. (Probably more than you think). The highest expense associated with many businesses is payroll and employers often go to great lengths to cut this cost even if it means violating wage and hour laws.
According to one small business consultant, to maintain fiscal health, payroll should make up 15-30% of a business’s gross receipts. For many businesses, however, especially service industries like restaurants, that number is closer to 50%. High payroll, consultants report, is one of the leading causes of business failure. If this is true, it is little wonder so many employers try to steal wages from their workers.
Payroll is one of the business expenses over which many employers feel they can exert control. However, when “control” violates wage and hour laws, you are entitled to take legal steps to recover your pay.
Even when wage theft is inadvertent, workers are entitled to their monies. For instance, if you do not get overtime because the time clock broke, or your employer did not add correctly, you are still entitled to those wages you earned. In a perfect world, your employer would immediately rectify the error after you point it out. However, if it does not work out this way, you can take appropriate legal action to secure those wages.
The Fair Labor Standards Act (FLSA) is the federal law that governs wages. Congress enacted the FLSA in 1938, establishing “minimum wage, overtime pay, recordkeeping, and child labor standards affecting full-time and part-time workers in the private sector and federal, state, and local governments.” (DOL Handy reference guide to the FLSA https://www.dol.gov/whd/regs/compliance/wh1282.pdf
It applies to all employers whose annual sales are over $500,000 or are “engaged in interstate commerce.” The FLSA, in reality, applies to nearly every business although there are exemptions for particular employees.
The Wage and Hour Division (WHD) of the US Department of Labor (DOL) administers and enforces the FLSA in the private sector of employment as well as state and local government employment. If you have an unpaid wage claim under the FLSA, you can file it with the WHD of the DOL or in a court of law. The agency has the authority to impose civil penalties on employers who violate the FLSA, oversee the payment of back wages to employees and initiate litigation on behalf of workers.
The agency oversees the administration of other wage and hour laws including the Service Contract Act and the Wage Garnishment Law.
New York Labor Laws create additional rules and regulations by which New York employers must abide. The legislation in our state cover areas where the FLSA may leave openings including things like vacation time, meal breaks, allowances, and state deductions. Where the laws overlap, the one that provides employees with the broadest range of rights and protections usually prevails. For example, when states have a minimum wage that is higher than the federal one, the higher wage governs.
There are areas of employment that NY law covers that the FLSA does not. For example, the FLSA minimum wage requirement does not apply to employees who work in fishing, but the NY law does. If your wage theft claim falls under state law, you may file a claim in state court or with the New York State Department of Labor. Speaking with experienced attorneys at Leeds Brown who handle wage and hour lawsuits can help determine what law covers your claim and how to proceed with a case. You don’t want to waste time wondering about the right place to file your matter or what law endows you with the most protection. Go straight to the wage and hour lawyers who know.
Congress passed the FLSA 1938 in part as a response to deplorable working conditions and wages that existed after the Great Depression. During that time, employers took full advantage of desperate workers and a very tight labor market. Knowing people would not risk losing their jobs, employers subjected them to unfairly low wages and unbearably long hours. The FLSA set out to guarantee basic workers’ rights. The FLSA established the 40-hour workweek, federal minimum wage, and set the requirements for overtime pay. The FLSA has evolved in some ways over time, and there are many exceptions to some provisions. However, the basic rules have remained the same.
The general rule across the country is that employees must receive minimum wage. The federal minimum wage is $7.25 per hour, and has been since 2009. Many states have their own minimum wage rules that meet or exceed the amount set forth in the FLSA. If a state does not have an independent minimum wage law, the FLSA is the governing piece of legislation.
When a state has a higher minimum wage, which many do, the higher dollar amount controls. New York has several different minimum wages, all higher than the federal rate. The New York minimum wage to which you are entitled to depend on factors like the location of your job and the type of work you do. The minimum wage rates in New York are as follows:
|New York City||10 or fewer employees||11 or more employees|
|December 31, 2016||$10.50||$11.00|
|December 31, 2017||$12.00||$13.00|
|December 31, 2018||$13.50||$15.00|
|December 31, 2019||$15.00|
|Nassau, Suffolk and Westchester Counties||All workforce sizes|
|December 31, 2016||$10.00|
|December 31, 2017||$11.00|
|December 31, 2018||$12.00|
|December 31, 2019||$13.00|
|December 31, 2020||$14.00|
|December 31, 2021||$15.00|
|Rest of NY State||All workforce sizes|
|December 31, 2016||$9.70|
|December 31, 2017||$10.40|
|December 31, 2018||$11.10|
|December 31, 2019||$11.80|
|December 31, 2020||$12.50|
Employees of fast food establishments in New York have different minimum wage schedules, depending on the location of the business. A fast food establishment is defined by the New York Department of Labor as one that:
If you work at Starbuck’s, Chipotle, Wendy’s, Taco Bell, McDonald’s, KFC, Subway or Dunkin Donuts, for example, your wage should reflect the special minimum wage that applies to fast food employees. The minimum wage for someone who works at a fast food restaurant is:
|Date||New York City||Rest of NY State|
Federal and state laws have specific rules regarding how tipped workers get paid. A regularly tipped worker is one that earns more than $30.00 per month in tips. Hotel workers, service workers, and food service workers are the most common categories of tipped workers. Here, we will talk about food service workers – those who work in restaurants as wait staff- because this group of employees is quite vulnerable to wage theft and tip theft.
Because food service workers are those that regularly receive tips, employers can pay them cash wages that are less than the full minimum wage. A “tip-credit” acts as a supplement to this lower rate. The tip credit plus the cash payment must not be less than the applicable total minimum wage amount. The amount of the tip credit and the cash payment are not at the employer’s discretion. According to the New York Department of Labor, tip credits and cash wages must be paid according to the following schedule: https://labor.ny.gov/formsdocs/wp/CR146.pdf
“New York City Large Employers of eleven or more employees
$7.50 Cash Wage, $3.50 Credit, $11.00 Total on and after December 31, 2016;
$8.65 Cash Wage, $4.35 Credit, $13.00 Total on and after December 31, 2017;
$10.00 Cash Wage, $5.00 Credit, $15.00 Total on and after December 31, 2018;
New York City Small Employers of ten or fewer employees
$7.50 Cash Wage, $3.00 Credit, $10.50 Total on and after December 31, 2016;
$8.00 Cash Wage, $4.00 Credit, $12.00 Total on and after December 31, 2017;
$9.00 Cash Wage, $4.50 Credit, $13.50 Total on and after December 31, 2018;
$10.00 Cash Wage, $5.00 Credit, $15.00 Total on and after December 31, 2019;
Nassau, Suffolk, and Westchester counties
$7.50 Cash Wage, $2.50 Credit, $10.00 Total on and after December 31, 2016;
$7.50 Cash Wage, $3.50 Credit, $11.00 Total on and after December 31, 2017;
$8.00 Cash Wage, $4.00 Credit, $12.00 Total on and after December 31, 2018;
$8.65 Cash Wage, $4.35 Credit, $13.00 Total on and after December 31, 2019;
$9.35 Cash Wage, $4.65 Credit, $14.00 Total on and after December 31, 2020;
$10.00 Cash Wage, $5.00 Credit, $15.00 Total on and after December 31, 2021;
Remainder of state
$7.50 Cash Wage, $2.20 Credit, $9.70 Total on and after December 31, 2016;
$7.50 Cash Wage, $2.90 Credit, $10.40 Total on and after December 31, 2017;
$7.50 Cash Wage, $3.60 Credit, $11.10 Total on and after December 31, 2018;
$7.85 Cash Wage, $3.95 Credit, $11.80 Total on and after December 31, 2019;
$8.35 Cash Wage, $4.15 Credit, $12.50 Total on and after December 31, 2020.”
Any time your employer fails to comply with minimum wage laws, you have the legal right to pursue your hard earned money. Even when a wage violation is accidental, that money belongs to you.
Educate yourself, so YOU know how much your employer is supposed to be paying you. If you are not receiving minimum wage, speak to unpaid wage lawyers like those at Leeds Brown, representing workers in New York, for information about how to recover your monies.
The FLSA establishes the basic rule of overtime law. According to the US Department of Labor, the FLSA states that unless exempt, employees covered by the Act must receive overtime pay for hours worked over 40 in a workweek at a rate not less than time and one-half their regular rates of pay. A workweek is any consecutive 168 hour period or 7 seven consecutive 24 hour days, not necessarily corresponding to the calendar week.
Calculating overtime pay is easy for the typical employee who gets paid on an hourly basis. You take the regular hourly rate and multiply it by one and one-half. For an employee who receives a salary, you must figure out the regular rate of pay first by dividing the salary by 40 hours and then multiplying by one and one-half. When employees perform different jobs at different rates, calculating the regular rate of pay requires a bit more work.
An hourly employee who earns $14.00 per hour works 46 hours in a workweek.
Regular rate of pay $14.00 x 40 hours = $560.00
Overtime rate of pay $14.00 x 1.5 = $21.00
$21.00 for 6 hours of overtime = $126.00
Total pay = $560 +$126 = $686.00
A salaried employee earns $500 per week and works 46 hours.
$500 divided by 40 hours = $12.50 per hour (regular rate of pay)
Overtime rate of pay is $12.50 x 1.5 = $18.75
$18.75 for 6 hours of overtime work = $112.50
Total pay = $500 + $112.50 = 612.50
Remember, if you are not an exempt employee you may not waive your right to overtime pay under any circumstances.
The laws of overtime and minimum wage govern employees only. Therefore, anyone who is not an employee is exempt from the provisions. For a worker to be an employee, there must be an employment relationship. An independent contractor, for example, is not entitled to overtime because an independent contractor does not fit the strict legal interpretation of employee. True independent contractors work for themselves. Some employers try call employees independent contractors precisely to avoid paying them minimum wages and overtime.
The FLSA uses an “economic realities” test to determine whether a worker is truly an independent contractor or an employee entitled to overtime. The US Department of Justice explains the factors they use when analyzing the classification of a worker:
True independent contractors are in business for themselves. For instance, painters, plumbers, electricians, and freelance workers are examples of workers who tend fall under the definition. Independent contractors are not the only workers, however, who are exempt from overtime and minimum wage provisions. Some workers are exempt, despite their legal status as employees.
The FLSA allows exemptions for executive, professional and administrative employees who earn a salary $455.00 per week or more. New York State has similar exemptions, although different salary requirements apply. When the federal and state laws say different things, the one that is more favorable to employees, is the one that prevails. New York exemptions have a significantly higher salary threshold than those under the FLSA and are scheduled to increase in the coming years. If you are a professional, executive or administrative employee who earns a salary of the amounts below, you MAY be exempt from overtime.
|New York City (employers with 11 or more employees)|
|$825.00 per week ($42,900 annually)||Dec. 31, 2016|
|$975.00 per week ($50,700 annually)||Dec. 31, 2017|
|$1,125.00 per week ($58,500 annually)||Dec. 31, 2018|
|New York City (employers with 10 or fewer employees)|
|$787.50 per week ($40,950 annually)||Dec. 31, 2016|
|$900.00 per week ($46,800 annually)||Dec. 31, 2017|
|$1,012.50 per week ($52,650 annually)||Dec. 31, 2018|
|$1,125.00 per week ($58,500 annually)||Dec. 31, 2019|
|Nassau, Suffolk, and Westchester counties|
|$750.00 per week ($39,000 annually)||Dec. 31, 2016|
|$825.00 per week ($42,900 annually)||Dec. 31, 2017|
|$900.00 per week ($46,800 annually)||Dec. 31, 2018|
|$975.00 per week ($50,700 annually)||Dec. 31, 2019|
|$1,050.00 per week ($54,600 annually)||Dec. 31, 2020|
|$1,125.00 per week ($58,500 annually)||Dec. 31, 2021|
|Outside of New York City, Nassau, Suffolk, and Westchester counties|
|$727.50 per week ($37,830 annually)||Dec. 31, 2016|
|$780.00 per week ($40,560 annually)||Dec. 31, 2017|
|$832.00 per week ($43,264 annually)||Dec. 31, 2018|
|$885.00 per week ($46,020 annually)||Dec. 31, 2019|
|$937.50 per week ($48,750 annually)||Dec. 31, 2020|
The reason you MAY be exempt from overtime (and not definitively so) is that employers often try to misclassify employees as exempt professionals, administrators or executives specifically to avoid overtime costs. Employees, however, must have more than salaries, job titles or job descriptions to pass the exemption tests. New York Labor Law and the FLSA require that employees pass the salary test AND a duties test to determine if employers are avoiding their legal overtime and wage obligations. Let’s look at an example:
To fall under the executive exemption if you are an employee of a large business in New York City, you must
Misclassification of non-exempt employees and independent contractors are two of the most common wage and hour cases our attorneys at Leeds Brown see involving overtime and minimum wage violations. A 2015 report by NELP http://www.nelp.org/content/uploads/Independent-Contractor-Costs.pdf indicates that the percentage of employers that misclassify employees as independent contractors ranges from 10% in some states to as much as 40% or more. According to the report, misclassification rates are disproportionately high in the following industries:
Consider this example calculated by a government expert: A construction worker earning $31,000 per year before taxes, would be left with a net compensation of $10,660 if paid as an independent contractor. That same worker paid correctly as an employee would receive $21,885.20. Imagine the overall cost to the hundreds of thousands of misclassified workers in our country.
These workers do not receive the protection of the FLSA or New York minimum wage and overtime laws:
Employees beware: Employers can be quite creative when trying to skirt the laws that govern how to pay their workers. It’s hard to find any industry where all employees get paid in total compliance with every regulation. Payroll makes up a huge percentage of most companies expenses, whether it is a restaurant, retail store or tech giant, so it is the area in which many owners seek to cut corners and bend the rules.
Stealing tips is a very common form of wage theft that occurs in a variety of ways. Tips are, in fact, wages that belong to employees. Restaurant owners and managers may not take a portion of employees’ tips for themselves. In New York, a restaurant may take a pro-rated portion of a tip when a customer leaves it on a credit card, but that part goes toward the fee charged by the credit card company. States have different rules on this matter.
A restaurant may direct that tips get pooled, but the pool must be a valid one under the law. A tip pool is when all tipped workers, defined as those regularly receiving over $30.00 per month in tips, put their gratuities together and distribute equal amounts to the participating employees. A valid tip pool must not include owners, managers or non-tipped employees that have nothing at all to do with food and drink service. A valid tip pool or sharing arrangement, for example, may include wait staff, busboys, and bartenders.
Misapplication of the tip credit is another common form of wage theft in the hospitality and restaurant industries. When an employer uses a larger tip credit than the law allows, the employee may have an unpaid wage claim. Restaurants often use the wrong amount when calculating overtime pay for regularly tipped workers. Instead of using the actual minimum wage to determine the rate of premium pay, employers may use the lower cash minimum wage to calculate overtime and hope that no one notices. The correct regular rate of pay for a tipped worker, however, is the amount of money that equals the cash payment plus the tip credit, not the cash wage alone.
At no time may a tipped employee’s wages fall below the minimum wage. Therefore, if when added to the cash wage, tips are insufficient to bring the amount up to minimum wage, the employer is responsible for filling in the difference. Also, an employer may not make deductions to the worker’s pay that will reduce wages below the minimum, including deductions for uniforms, breakage, or walkouts by customers. https://www.dol.gov/whd/regs/compliance/whdfs15.pdf
In New York, a service charge added to a bill also belongs to employees because customers presume it is a gratuity. Unless the customers know that it is NOT a gratuity, the money must go to the employees.
Wage theft occurs in ways that are obvious and less so. On a daily basis, you might be losing money and not even realize it. A little bit each day or week adds up and whatever the amount, you are entitled to collect ALL of the money the law allows you. Consider the following scenarios:
If any of these sound familiar you may be a victim of wage theft. If you are performing work off the clock, you are not getting compensated for that time, and it is not getting calculated into the hours of your workweek, perhaps also costing you overtime pay. The same goes if you are working through unpaid breaks. You must receive compensation for all the time you spend working, even an “unpaid” break. This time must also get calculated into the total number of hours you work. Any time your employer does not include all of the time you perform work when figuring out your pay, you may be losing overtime in addition to regular wages.
The laws that govern the workplace, like the FLSA and New York State law, prohibit employers from retaliating against employees who try to assert their wage and hour rights. Many workers still fear punishment for speaking out against wage and hour violations. Unfortunately, victims of minimum wage violations, in particular, tend to be the lowest earners who may be unskilled, have criminal backgrounds or other issues that make losing their jobs a great concern. However, retaliation is unlawful, and when your employer even threatens to take action against you for trying to secure your wages, it is a violation of your rights.
New York Labor Law § 215 “prohibits an employer from discharging, penalizing or in any other manner retaliating against an employee because such employee has made a complaint to his or her employer … that the employer has violated any provision of … the Labor Law.”
Retaliation can occur in different ways including threatening or acting to:
Prohibiting retaliation is designed to allow and even encourage employees to freely approach employers or officials with wage and hour grievances to enhance compliance with wage and hour policies. If an employee brings an unpaid wage claim and it is determined that the employer did not violate the law, that company may still be held liable for damages caused by retaliation.
While no industry is immune to wage and hour violations, low-wage earners suffer the most. Sadly, many workers who need to keep their jobs are afraid to speak up about their pay, out of fear. Despite laws against retaliation, for many earning less than what the law requires, feels like a better alternative to being unemployed. Sometimes, with the help of experienced unpaid wage lawyers, like the ones at Leeds Brown, a group of employees will band together and file an unpaid wage action against their employers. There can be strength in numbers.
Certain industries seem to be affected by wage and hour violations more than others. Workers in the following fields, many of which are service oriented, are at risk for wage-theft:
Employees have a lot of questions when they face a troubling work situation. Sometimes the best thing to do is to ask your employer about your paycheck. It is possible that if money is missing, there was an honest mistake that your company will immediately rectify. If not, consider speaking with employment attorneys at Leeds Brown about your situation. Together we can determine the best course of action to find out how much your employer owes you and how to get that money in your pocket.
If you have concerns about retaliation, speaking directly with your employer may not feel like a safe option. We are here when you need us to advocate on your behalf.
How you file a claim will depend on your goals and the laws under which your case falls. For example, if your case falls under the FLSA, you can file a claim with the US Department of Labor Wage and Hour Division or file a lawsuit in federal court. If NY law protects you, you can file a lawsuit in state court or file a claim with the New York Department of Labor.
If you file a claim with the NY Labor Department, it will investigate your case and try to recover the money your employer allegedly owes you. IF they cannot resolve your matter, they can bring a court case on your behalf. IF the case is successful, you can recover the money you are owed in addition to 25% if you can prove your employer was willful when it violated wage laws.
You may choose to file a court case instead of working with an agency. If you win your case, the court can award you the wages you are owed, an additional 25% (if the violation was willful), attorneys’ fees, and litigation costs up to $50. The statute of limitations for bringing such a case is six years.
Regardless of whether you choose to file a claim with the Labor Department or in court, it helps to speak with a lawyer in advance. You want to be confident that your claims contain all of the allegations that exist and include a proper accounting of the money your employer owes you. There are strict time limits, and they can differ based on, for example, whether your claim is federal or state. Missing a deadline can bar your claim forever.
During the last several years the news has been filled with cases involving big-name employers who have faced accusations of wage theft. Some of the matters concluded with settlements or verdicts awarding back pay and damages to victimized employees, and others are still unresolved. Domino’s, Papa Johns, Chipotle, Kate and Ashley Olsen, and 21st Century Fox all found themselves embroiled in claims to recover minimum wages and overtime. Several restaurants in NYC were ordered to pay groups of employees for retaliation, overtime pay and other wages. Uber drivers continue with their class action alleging they are victims of wage theft.
If you work for one of these employers, or any other in New York that has committed wage theft, you are not alone. You and your co-workers have recourse and the means by which to enforce your rights.
Our wage and hour lawyers know how hard you work. We also know that you want and should take home every dollar to which you are entitled. The FLSA and New York Labor Law protect the rights of employees to earn at least the minimum wage for every hour worked and to receive a premium in the form of overtime pay for all hours worked more than 40 per week. Your employer may not punish you for trying to secure your money.
If you need assistance, Leeds Brown has attorneys who can help explain your rights and guide you through the process of protecting them. Whether you wish to file a claim with an agency or a civil lawsuit in a court of law, our compassionate and dedicated team of lawyers have the skill and knowledge to help you succeed. Representing employees is what our lawyers are passionate about, and it shows in the work that we do and the way we treat our clients.
You can reach a New York employment attorneys at Leeds Brown to learn more about filing a wage and hour lawsuit or any unpaid wage claim by calling 1-800-585-4658. Someone is here to answer your call 24/7 so don’t wait. Call today.
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