|March 13, 2020||How Dangerous Is Texting While Driving Compared with Drunk Driving?||no comments|
|March 13, 2020||NEGOTIATING A CONTRACT?||no comments|
|February 26, 2020||WHAT TO DO (AND NOT TO DO) WHEN YOU ARE BEING TERMINATED FROM YOUR JOB||no comments|
|October 30, 2019||Breaking it Down – the New Sexual Harassment Laws in New York||no comments|
|October 24, 2019||GASP! THE NEW ANTI-DISCRIMINATION LAWS ARE IN – WHAT YOU NEED TO KNOW AS BOTH AN EMPLOYER AND EMP...||no comments|
|September 12, 2019||The Van De Water Law Firm, P.C. Opens New Office||no comments|
|August 23, 2019||THE DEADLINE APPROACHES! SEXUAL HARASSMENT TRAINING REQUIRMENTS IN NEW YORK STATE||no comments|
|August 16, 2019||PUMPING BREAST MILK IN THE WORKPLACE. YOU’RE PROTECTED UNDER FEDERAL LAW!||no comments|
|August 09, 2019||NY County Lawyers Association Sued Over Alleged Pregnancy Discrimination||no comments|
|May 23, 2019||SO WHAT’S THE DEAL WITH OVERTIME AND WHY AREN’T I GETTING IT?||no comments|
Why Texting While Driving May Be More Dangerous than DWI
It may come as a surprise that texting while driving is more worrisome to the majority of drivers than drunk driving. This is true despite the fact that statistics show that drunk drivers kill more people than drivers who are texting.
Survey and Facts About Texting While Driving
Cambridge Mobile Telematics conducted a survey on more than 700 drivers regarding distracted driving. Results showed that 63 percent of the participants worried more about distracted drivers than drunk drivers.
The following statistics also provide vital information:
Today all state legislatures have enacted drunk driving laws. It took years of campaigns, including Mothers Against Drunk Driving and other efforts along with public demand to eliminate for laws to emerge. All states now have blood alcohol content limits. Breathalyzers and sobriety tests are legal means to identify drivers who are intoxicated.
In 2016, there were 10,497 people who died as a result of drunk driving accidents. This number is greater than the number of reported deaths due to distracted driving.
However, there is no system in place to detect distracted driving the way there is with drunk driving. Distracted driving is much more difficult to detect and to report.
A Comparison of Laws
Laws for texting while driving are not nearly as stringent as drunken driving laws. All states now have no texting while driving laws. For mobile phones, many states, but not all, have hands-free laws. Despite the laws, the survey revealed that 75 percent of drivers see other drivers on their phones.
In New York, a first DWI offense is a misdemeanor, and penalties include the loss of driving privileges, fines and possible jail time. Penalties are much greater for subsequent DWI offenses.
By comparison, texting while driving carries a fine of $200 and points added to the driving record for violation. There is no license suspension and no jail time.
What to Do if You’re in a Crash Caused by a Distracted Driver
If you have been in a serious car crash and the other driver was at fault due to texting while driving, get legal help right away. Lawyers offer free consultations to evaluate your case. There would be no out-of-pocket expenses. When the attorney succeeds through settlement or verdict, the attorney’s fee is a percentage of the compensation.
HERE IS WHAT YOU NEED TO KNOW:
Negotiating the terms of a contract is an integral part to any business or employment agreement as it will control the rights and obligations of each party throughout the relationship of the parties. But what should a solid contract include? Here is a guide on the top 10 ways to protect yourself once you have reached an agreement in principle and want to put it down to writing.
Get it in writing.
Keep it simple.
Deal with the right person.
Identify each party correctly.
Spell out all of the details.
Specify payment obligations.
Agree on circumstances that terminate the contract.
Agree on a way to resolve disputes.
Pick a state law to govern the contract.
Keep it confidential.
Often, when one business hires another to perform a service, the other business will become privy to sensitive business information. Your agreement should contain mutual promises that each party will keep strictly confidential any business information it learns of while performing the contract.
The Van De Water Law Firm, P.C. specializes in contract drafting and negotiation. We will protect your interests in all manner of contracts, whether it be the sale of your business or negotiating the terms of any employment contract. You can contact us for a free consultation at 516 (400-4142) or (631) 923-1314. Visit us on the web at https://chrisvandewater.com/
Ok so you’ve been called into the boss’ office and Human Resources is sitting in. It is only natural that your hands get a little shaky and your blood pressure skyrockets. You feel the panic rising. You’re definitely not thinking straight. When they deliver the bad news, your mind goes blank. What do you do?
First and foremost… don’t panic. Here’s a quick reference of things to do — or not — to help you think clearly when you get the unfortunate news that you’ve been fired or laid off.
Do work as long as you can.
Do ask about getting your personal items.
Do ask about your insurance.
If no severance is offered, do ask about it.
Do ask if the company has a severance plan or policy.
Do ask when you’ll get your final check.
Do ask why you’re being terminated.
If they claim you signed a non-compete or confidentiality agreement, do ask for a copy.
Do ask what co-workers and potential employers will be told.
If they ask you to resign, say no.
If you do have access to your computer and documents, here’s what you do want to collect before you go:
Don’t sign anything.
Don’t yell, curse or make a scene.
If you believe they got it wrong, don’t argue or beg.
Don’t admit to a crime or wrongdoing.
But whatever you do, don’t sign something admitting to a crime. Ever.
Don’t demand to say goodbye.
The Van De Water Law Firm, P.C. specializes in protecting your rights during the difficult process of job termination. We are here to counsel you through the process in the event that your employer unlawfully terminated you or you were the victim of discrimination or sexual harassment. We are conveniently located in both Nassau and Suffolk Counties and can be reached at 516-400-4142 or 631-923-1314. You can also find us on the web at Chrisvandewater.com.
As of October 9, 2019, Employees are more protected from discrimination in New York than ever before, and Employers are subjected to new standards of which they must be familiar to protect themselves from the flood of litigation that will surely follow. How so? Thanks to a number of broadly protective legislative changes, anti-harassment laws in New York State now encompass all protected classes under the New York Human Rights Law, not only sexual harassment cases. These protected classes include discrimination based on an employee’s age, race, color, sex, sexual orientation, national origin, marital status, criminal record, amongst others.
The Burden of Proof for a Hostile Work Environment Has Changed, and it is Decidedly Pro-Employee
I. The Old Standard – Severe and Pervasive
In the past, to succeed in a claim based upon a hostile work environment, an employee suing an employer for discrimination had to prove that harassment was “severe and pervasive.” Under any stretch of the imagination, this was a touch standard to satisfy in a Court of law. An unwanted sexual attack or repeated discriminatory comments made over a period of months to an employee based on their protected class would be obvious examples of severe acts sufficient to satisfy this old standard. In this regard, the key to the Court’s initial inquiry was the pervasive nature of the harassment, such as continually making lewd comments or frequently touching the employee in a sexual way over a period of time. More specifically, comments in the workplace had to rise to a certain level of severity rather than consist of occasional teasing, jokes or isolated discriminatory comments. Unless employees could provide supportable evidence that rose to that relatively high level of proof, their claim would be dismissed early on in the litigation process.
II. The New Standard – Petty Slights and Trivial Inconveniences
Now that the new anti-harassment laws are in effect, the burden of proof has changed from this old standard of “severe and pervasive” discriminatory conduct to the new standard of “rising above petty slights and trivial inconveniences.” An affirmative defense for an employer is to prove that “the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.” This is a huge change in the burden of proof that will invariably open the floodgates of litigation in cases that were historically brought under the Federal anti-discrimination statute, Title VII. Now, employees will be empowered to bring their claims under the new laws in New York State without the necessity of first exhausting their administrative remedies with the Equal Employment Opportunity Commission, a prerequisite to commencing an action in Federal Court.
Of equal importance is the that under the previous legislation and corresponding standard of proof, an employer could potentially argue that the claim was not actionable because the employee failed to file a complaint of discrimination or otherwise take advantage of the employer’s investigation process, most frequently accomplished through a complaint to the employee’s direct supervisor or Human Resources department. However, under the new law and corresponding standard, any purported failure by an employee to take advantage of the employer’s complaint process no longer results in a good faith defense on behalf of the employer.
Thus, employers must be aware of these sweeping changes to the anti-harassment laws in New York State, and train their employees accordingly.
As always, we at The Van De Water Law Firm is your local resource for all your legal needs, including prosecuting and defending claims of discrimination and sexual harassment in the workplace. Call now for a free evaluation and consultation at (631) 923-1314, or email us at Chris@VDWLawFirm.com. You can also visit us on the web at https://chrisvandewater.com/
As I previously blogged on the topic, the New York State Senate and Assembly passed an omnibus bill that completely overhauls New York State’s dated and out of touch anti-discrimination laws, and in the process uprooted deeply engrained precedent upon which employers have relied for decades in defending harassment claims. This is good news for employees seeking to hold their employers liable for acts of harassment that take place in the work environment, but bad news for employers who will be defending those same claims.
More specifically, Governor Andrew Cuomo signed the bill into law on August 12, 2019, and the various amendments to the New York State Human Rights Law (NYSHRL), the General Obligations Law, the Civil Practice Law and Rules (CPLR), and the New York Labor Law (NYLL) will take effect as follows.
|August 12, 2019||Upon hire and at every annual sexual harassment prevention training program, employers must provide employees a notice containing the “employer’s sexual harassment prevention policy and the information presented at such employer’s sexual harassment prevention training program” (in English and in the primary language of the employee).|
|August 12, 2019||NYSHRL shall be construed “liberally for the accomplishment of the remedial purposes thereof, regardless of whether federal civil rights laws, including those laws with provisions worded comparably to the provisions of this article, have been so construed,” and exceptions and exemptions “shall be construed narrowly in order to maximize deterrence of discriminatory conduct.”|
|October 11, 2019||All private sector employers will be subject to the antidiscrimination provisions of the NYSHRL.|
|October 11, 2019||Harassment will be considered “an unlawful discriminatory practice when it subjects an individual to inferior terms, conditions or privileges of employment” because of his or her protected characteristics. Employers will have a seemingly narrow affirmative defense to liability if “the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.” “The fact that such individual did not make a complaint about the harassment to [his or her] employer . . . shall not be determinative of whether” such employer is liable. Claims by domestic workers will be subject to the same standard.|
|October 11, 2019||The prohibition against unlawful discrimination based upon each of the protected categories identified in the NYSHRL will extend to nonemployees.|
|October 11, 2019||NYSHRL will permit the prevailing claimant to recover both attorneys’ fees and punitive damages from private employers.|
|October 11, 2019||Employers will be prohibited from requiring nondisclosure clauses in any settlement, agreement, or other resolution of any claim where the factual foundation for which involves discrimination, including but not limited to under the NYSHRL, unless the condition of confidentiality is the complainant’s or plaintiff’s preference. Any nondisclosure term or condition must be provided in writing to all parties in plain English and, if applicable, the primary language of the complainant, after which he or she will have 21 days to consider such term or condition and 7 days to revoke the acceptance after execution of such agreement.|
|October 11, 2019||Any nondisclosure term or condition will “be void to the extent that it prohibits or otherwise restricts the complainant from: (i) initiating, testifying, assisting, complying with a subpoena from or participating in any manner with an investigation conducted by the appropriate local, state, or federal agency; or (ii) filing or disclosing any facts necessary to receive unemployment insurance, Medicaid, or other public benefits to which the complainant is entitled.”|
|October 11, 2019||Employers will be prohibited from requiring employees to sign agreements that require mandatory binding arbitration of claims relating to any form of discrimination.|
|January 1, 2020||Any agreement entered into on or after January 1, 2020, “that prevents the disclosure of factual information related to any future claim of discrimination is void and unenforceable, unless such provision notifies the employee or potential employee that it does not prohibit him or her from speaking with law enforcement,” the Equal Employment Opportunity Commission, the New York State Division of Human Rights (NYSDHR), “a local commission on human rights, or an attorney retained by the employee or potential employee.”|
|August 12, 2020||Sexual harassment complaints filed directly with the NYSDHR must be filed within three years (previously one year) after the alleged harassment.|
|2022||The New York State Department of Labor and NYSDHR must reevaluate and update the model sexual harassment prevention policy and guidance document every four years, beginning in 2022.|
As always, we at The Van De Water Law Firm is your local resource for all your legal needs, including prosecuting and defending claims of discrimination and sexual harassment in the workplace. Call now for a free evaluation and consultation at (631) 923-1314, or email us at Chris@VDWLawFirm.com. You can also visit us on the web .
WOODBURY, N.Y., September 11, 2019 (Newswire.com) - The Van De Water Law Firm, P.C. is pleased to announce its new office location at:
185 Froehlich Farm Blvd., Woodbury, New York
Business hours: 9 a.m.–5 p.m. Monday–Friday
Attorney Christopher Van De Water stated, “We are happy with the recent move to our new office, which clients will find conveniently located off the Sunnyside Exit of Interstate 495, known as the Long Island Expressway (LIE).”
The Van De Water Law Firm reminds employers that the New York Sexual Harassment Training Deadline is approaching. By Oct. 9, 2019, employers must provide sexual harassment training to all employees located in New York State. Thereafter and upon an ongoing basis, all employers must provide sexual harassment training to all employees each year. It's the law.
The Van De Water Law Firm provides detailed and fully compliant sexual harassment training that complies with both the New York State and City requirements, To arrange for the required training for your business or for a no-cost, no-obligation case evaluation and legal consultation, please call (516) 400-4142 or (631) 923-1314 or send an email to the firm at Chris@VDWLawFirm.com.
About The Van De Water Law Firm, P.C. – Christopher L. Van De Water focuses his practice on employment, labor and business law, representing clients in litigation and negotiation in all areas of employment law, including wage and hour matters, sexual harassment, discrimination, retaliation, professional contracts, Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Family and Medical Leave Act, and numerous other types of employment-based litigation and disputes. With over 20 years of litigation experience, Chris Van De Water has successfully tried numerous cases to verdict in both State and Federal court. The firm’s recent landmark pregnancy discrimination case has been featured in the New York Law Journal.
The firm serves clients in Nassau and Suffolk counties and throughout the New York City area. Find out more about the firm at https://chrisvandewater.com/.
August 23, 2019 UPDATE
Governor Cuomo, on August 12, 2019, signed into law Assembly Bill A8421, which significantly expands New York State sexual harassment and discrimination laws. These changes are in addition to the significant legislation that New York enacted in 2018 that were originally reported by The Van De Water Law Firm. This article details the revised and most timely deadlines and requirements under New York State and New York City sexual harassment training laws.
New York Sexual Harassment Training Deadline of October 9, 2019
By October 9, 2019, employers must provide sexual harassment training to all employees located in New York State. Thereafter and upon an ongoing basis, all employers must provide sexual harassment training to all employees each year. Both court decisions and numerous regulations in New York State have made it clear for years that all employers should provide harassment prevention training. Now it’s the law!
The New York State law:
· Applies to all employers, regardless of their size, who employ anyone in the state of New York.
· Applies to all employees, not just supervisors.
· Requires that the training is provided annually.
· Applies to all contractors who bid on New York State contracts.
The NYC law, entitled the “Stop Sexual Harassment in NYC Act,” applies to all employers with 15 or more employees, and requires annual sexual harassment training for all employees. Mandatory compliance with that law began on April 1, 2019.
As a matter of course, both the New York State and New York City laws detail specific content that must be addressed in the training. While New York State training content requirements are similar to content requirements in other states, New York City’s law goes beyond the training content that previously has been required in other jurisdictions. For example, the training provided to employees in New York City must:
· Address bystander intervention
· Describe the complaint process available through the NYC Commission on Human Rights, the New York State Division of Human Rights, and the United States Equal Employment Opportunity Commission, and provide employees with those agencies’ contact information
The two tables below detail the obligations and the differences between the New York State and New York City laws regarding:
1. Training Requirements (Table 1)
2. Training Content (Table 2)
As a breastfeeding mother, the last thing on your mind during this joyous time should be how and when you are permitted to pump breast milk at work. However, the cold reality is that many employers don’t have a policy in place to permit pumping, and even worse, some employers discourage new mothers from pumping activities during working hours. This is illegal and has no place in today’s evolving society norms. As an employer, you have an obligation to create a breastfeeding policy and accommodate your employees.
As of 2010, Section 7 of the Fair Labor Standards Act (FLSA), a Federal statute that protects employees in their workplace, was amended to require employers to provide basic accommodations, such as time, space and other accommodations, for breastfeeding mothers at work. Learn more about what employers are required to provide.
What time accommodation does an employer have to provide nursing employees?
“Reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk” — U.S. Department of Labor Wage and Hour Division, Section 7(r) of the Fair Labor Standards Act — Break Time for Nursing Mothers Provision
Employers covered under FLSA must provide a reasonable break time to express milk. The law recognizes that each woman will have different needs for milk expression breaks (often called pumping breaks). Most women use their standard breaks and meal period to pump or express milk.
However, even in work environments that require a more rigid employee schedule, reasonable time can be accommodated. Women can schedule breaks ahead of time, if needed. Some companies, such as manufacturing plants and schools, often provide floaters for coverage when employees are taking breaks. Sometimes a supervisor fills in.
What space accommodations does an employer have to provide nursing employees?
“A place other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk” — U.S. Department of Labor Wage and Hour Division, Section 7(r) of the Fair Labor Standards Act — Break Time for Nursing Mothers Provision.
Employers covered under FLSA must provide a private space for lactation that is not a bathroom. “Private” means that other people cannot see an employee while she is pumping breastmilk. Often this means putting a lock on the door, but some companies use mobile screens or tall cubicle areas. The space does not have to be a permanent, dedicated lactation room. This section shows many solutions for providing permanent, flexible, or temporary spaces and even mobile options that can be used in virtually every type of industry. Learn more about providing appropriate locations for nursing moms to express milk.
Why do employees who are breastfeeding need time and space for lactation at work?
Health benefits. Breastfeeding is so important for the health of mothers and babies that major medical organizations, such as the American Academy of Pediatrics (AAP), recommend that babies receive nothing but breast milk during the first 6 months of life and continue receiving breast milk for at least their first year. More than 80% of new mothers now begin breastfeeding immediately after birth.1 Breastfed babies are healthier and have lower health care costs. Giving breast milk, rather than formula, helps prevent sudden infant death syndrome (SIDS), asthma, ear infections, type 2 diabetes, and many other illnesses.2 And the longer a mother feeds her child breast milk, the more health benefits there are for both mother and child.2
Biological needs. Breastfeeding is a normal biological process. Breastfeeding employees need breaks throughout the workday to pump because milk production is a constant, ongoing biological process. A breastfeeding mother needs to feed her baby or pump milk about every 3 hours. Otherwise, her body will stop making breast milk. When a nursing mother cannot pump or breastfeed, the milk builds up in her breasts, causing pain and sometimes infection. Removing milk from the breast is a biological need, similar to the need to eat or sleep.
Comfort. A lactation space is necessary because in order to begin the flow of milk, mothers must be able to sit down and be relaxed and not stressed. Mothers who are in an open or uncomfortable space may not be able to pump milk or may not be able to pump milk as quickly.
Privacy. A private space is necessary because pumping or expressing milk is a very different experience from breastfeeding a baby in person. Most moms can breastfeed a baby very discreetly, and many moms breastfeed in public with no concerns. However, pumping breast milk is different. In order to apply the pump equipment, a woman will usually need to remove part of her clothing, and many pumps make a distinctive sound during pumping that may cause embarrassment or discomfort. Pumping equipment also needs to be cleaned after use, and breast milk must be stored properly. There are more steps required in pumping breast milk compared to breastfeeding a baby in person.
Why can’t employees pump milk in the bathroom?
Bathrooms are a place to eliminate waste from the body and to wash hands afterward in order to prevent the spread of germs and disease. Breast milk is food and should be handled in the same way other food is handled. No one would be willing to prepare food in a bathroom, and that includes breast milk. Bathrooms are not a sanitary place to prepare and handle food of any kind.
In the past, mothers were forced to use bathrooms to pump because there was no other private space available when it was time for a mother to express milk. Pumping is not something that all moms can do discreetly under a cover, in the way a baby can be breastfed discreetly in public. Breastfeeding mothers need space that is not a bathroom to express milk in a clean and private environment.
Are employers required to pay employees for pumping breaks?
“An employer shall not be required to compensate an employee receiving reasonable break time to express milk for any work time spent for such purpose.” — U.S. Department of Labor Wage and Hour Division, Section 7(r) of the Fair Labor Standards Act — Break Time for Nursing Mothers Provision
Therefore, employers are not required to pay employees for milk expression breaks, although some companies choose to do so. If an employer already provides paid breaks, however, an employee who uses that break time to pump must be compensated in the same way other employees are compensated for break time. If extra time is needed because a mother is pumping or expressing milk, that extra time can be unpaid.
Other options, though not required by law, are to allow women to work a more flexible schedule and make up extra time needed by coming to work earlier, staying later, or taking a shorter meal break. Some companies do not track extra break time taken as long as an employee completes her job duties in a timely manner. Learn more about providing break time to nursing moms.
Does my employer have to create a lactation policy?
Creating a policy helps ensure that all employees have access to the same level of support, no matter what type of workplace they have. A policy helps the company be sure it is complying with federal regulations and also shows support for the health of employees and their families. A policy clearly defines the roles and responsibilities of both supervisors and employees, potentially helping them avoid embarrassment about discussing a personal topic. Having a policy in place means that managers will know exactly how to support an employee who is returning from maternity leave and wants to continue breastfeeding. And having a policy means that before maternity leave, employees will know what type of breastfeeding support they will receive at work. A lactation policy can help a mother decide whether to return to work after maternity leave.
A lactation policy or lactation support program also helps managers and supervisors communicate the importance of lactation breaks and private lactation space to all staff, not just the nursing mother. Employers can use a formal policy to educate all staff about the importance of respecting a coworker’s privacy while pumping and about providing coverage during lactation breaks. A clearly communicated policy can help prevent harassment and other negative workplace behavior.
What about New York State laws that protect breastfeeding mothers?
The following summaries the protections available to breastfeeding mothers under New York State Statutes:
We at the Van De Water Law Firm, P.C. specialize in wage and hour and overtime cases. If you believe you are the victim of overtime violations, we are always available for a free consultation and can be reached via email: Chris@vdwlawfirm.com, cell phone: (516) 384-6223, office (631) 923-1314. More information can be found at the website.
“Discrimination in the present culture shouldn’t be tolerated under any circumstances, especially in the context of a woman’s pregnancy.” Attorney Chris Van de Water
The New York County Lawyers Association has been sued by a former employee who claims she was taunted in the workplace, had to pump breast milk in the bathroom and was ultimately fired because of her two pregnancies.
Heidi Leibowitz, a fee dispute program administrator, said she worked for the prominent New York bar association starting in 2005 and began facing discrimination once she became pregnant in 2013. The suit, filed Wednesday in Brooklyn Supreme Court, alleges violations of city and state human rights laws and seeks unspecified damages.
The first time she became pregnant, Leibowitz alleged, she was assigned arduous tasks that she wasn’t assigned before, such as retrieving boxes from a basement. After giving birth, she said, she could initially only pump breast milk in the bathroom and was only given 15 minutes to do so. After complaining, she was given access to a conference room, but it was rarely available for use, she said.
“Both defendants’ managing director and director repeatedly [asked] plaintiff whether she planned on having any more kids and ‘how many babies do you people have!,’ among numerous other snide and degrading remarks,” her suit claims.
The suit also names Sophia Gianacoplos, the group’s executive director, and Lois Davis, a director, as defendants. The suit claims Gianacoplos threatened to fire Leibowitz for using sick days and claims Davis made remarks such as “pregnancy doesn’t make you special.”
After she became pregnant again in 2015, Leibowitz said, a co-worker asked her if she was pregnant and told her that her bosses would be “furious.” Her complaint claims her supervisors told her not to take so many bathroom breaks, “despite the fact that plaintiff’s pregnancy caused her to repeatedly vomit in the bathroom,” remarked that she was “walking funny” and pressured her to disclose her pregnancy earlier than she had planned.
Leibowitz said she gave birth in May 2016. While on leave, she said, she was cut to part time and was fired on Aug. 9, 2016.
Christopher Van De Water of the Van De Water Law Firm, who represents Leibowitz, said, “Discrimination in the present culture shouldn’t be tolerated under any circumstances, especially in the context of a woman’s pregnancy.”
Representatives for the NYCLA didn’t immediately respond to comment requests. Davis, who no longer appears on NYCLA’s staff list online, could not be reached for comment.
Author: The Van De Water Law Firm, P.C.
Overtime Pay in New York
Many employees in New York are eligible for overtime pay if they work more than 40 hours per week. Unless an employee has a job that is specifically exempt from the overtime requirement under state and federal law, employers are required to pay employees time-and-a-half for all hours worked in excess of 40 hours per week. Time-and-a-half means an employee is entitled to 1.5 times their hourly rate for all hours worked over 40 in a given week. For example, if an employee is paid $20 hour and works 50 hours per week, that employee should be paid $20 x 40 ($800) in regular pay, and $35 x 10 ($350) for overtime hours worked, for a total of $1,150.
Determining Who Is Exempt from Overtime
A common misconception is that eligibility for overtime is determined based solely on your job title or whether you are salaried. That is simply not true. Instead, it is your employment classification that determines how your employer pays you and the benefits to which you are entitled. In New York, you can find these classifications and the legal protections associated with them in the New York State Labor Law.
Some examples of jobs that are exempt and thus not subject to receiving overtime are:
Unfortunately, employers often mis-classify employees as exempt from overtime, and many employees are unaware of their right to overtime compensation. As a result, many employees are not paid wages they are owed under the law.
Another trick employers use to avoid paying overtime is misclassifying employees. Misclassification that results in failure to pay overtime wages can occur in three ways:
3) Failing to provide an employee overtime wages because the employee is salaried. Just because you are salaried does not in itself mean you are exempt from getting overtime wages. If you are not exempt from overtime wages, your employer is responsible for calculating your hourly wage equivalent and providing you with overtime pay when you work more than 40 hours per week. Additionally, certain employees may meet the “highly paid” exemption if they are salaried; however, many salaried employees do not qualify for this exemption.
Who is Going to Pay for All This? Attorney’s Fees, Liquidated Damages, Cost and Interest
Federal and State Laws require that attorney’s fees, liquidated damages, costs and interest to be paid to an employee that prevails in an overtime claim. 29 U.S. Code § 216, otherwise known as the Fair Labor Standards Act (“FLSA”). The FLSA provides that the Court shall allow a successful employee to recover his or her reasonable attorney’s fees, as well as the costs associated with pursuing their rights in a legal action. More specifically, the Courts in New York have held that an employee who “prevails” in an FLSA action shall receive his or her “full wages plus the penalty without incurring any expense for legal fees or costs. This takes the financial burden off of an employee and places it squarely on the shoulders of their employer, allowing them to come forward and enforce their rights without paying an expensive retainer to secure the services of a highly skilled attorney who specializes in wage and hour claims, as does The Van De Water Law Firm, P.C.
Similarly, the New York Labor Law in §§ 198(1-a) strongly supports its Federal overtime counterpart by stating that “In any action instituted in the courts upon a wage claim by an employee or the commissioner in which the employee prevails, the court shall allow such employee to recover the full amount of any underpayment, all reasonable attorney’s fees, prejudgment interest as required under the civil practice law and rules, and, unless the employer proves a good faith basis to believe that its underpayment of wages was in compliance with the law, an additional amount as liquidated damages equal to one hundred percent of the total amount of the wages found to be due.”.
We at the Van De Water Law Firm, P.C. specialize in wage and hour and overtime cases. If you believe you are the victim of overtime violations, we are always available for a free consultation and can be reached via email, cell phone: (516) 384-6223, office (631) 923-1314. More information can be found at The Van De Water Law Firm P.C.
“I am your legal protector”