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: Read More
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: Read More
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.
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New York Laws that Govern Paid and Unpaid Interns
Some businesses hire interns or take on unpaid interns. This may seem like a good idea, and the costs of paying an intern are usually less than a regular worker. However, if taking on an unpaid intern, it is vital that the business owner understands the requirements.
NY law defines the rules that differentiate an employee from an unpaid intern.
If the employment relationship does not meet all the 11 criteria for an unpaid intern, then the employer must pay the intern based on minimum wage law.
NY Law for Hiring Unpaid Interns
Under New York Labor Law, the 11 criteria are as follows:
- The training must be similar to training in an educational program.
- The training is for the intern’s benefit. An example would be that the academic institution would give the student credit for the internship. Any benefit to the employer would be incidental.
- The intern does not replace regular workers and must work under close supervision. When interns receive the same supervision as other employees, it indicates an employee relationship and not an intern relationship.
- The employer does not gain an advantage from the intern’s work. In fact, the intern may sometimes actually impede the business’s operations.
- Once the internship concludes, the intern is not necessarily entitled to a job.
- The intern receives written notification about not being paid any wages.
- Persons who supervise the intern must be competent, knowledgeable and have adequate experience to meet the educational goals and requirements of the training program.
- Interns do not receive employee benefits (i.e. health and dental insurance, discounted or free goods or services or pension/retirement credit).
- The intern is receiving general training for the type of industry or business. The intern is not receiving training for a specific job with the employer who is offering the program.
- The employer uses a different screening process to acquire an unpaid intern than the process being used to hire employees. The process is based on an educational program and not a job.
- The advertisements, postings or solicitations for interns focus on education rather than employment.
If you have concerns about hiring interns, our attorneys at Stephen Hans & Associates are glad to advise you. We also represent employers in all types of employment related disputes.
Statistics Tell the Story of Why Texting While Driving Causes Accidents
Forty-eight states (all except Missouri and Montana) have banned texting while driving for all drivers. Missouri bans it for drivers 21 years or younger.
(Reference: National Conference of State Legislatures)
Facts About Texting While Driving
The following statistics and facts were determined for the years 2012 through 2018:
- Of all fatal crashes across the nation, 9 percent involved texting while driving.
- It takes approximately 5 seconds to answer a text. When driving 55 miles per hour, 5 seconds is the time it takes to travel 100 yards, the size of a football field.
- Cell phone use resulted in 4,637 deaths caused by car crashes in 2018.
- The risk of causing a car accident due to texting while driving is 6 times greater than due to drunk driving.
- Using a cell phone while driving (hands-free and hand-held) reduces driver reaction time by as much as a blood alcohol content of .08%.
GPS Devices Also Result in Dangerous Driving Behavior
Using a GPS device is a similar behavior to texting while driving and also causes accidents.
(Reference: The National Highway Traffic Safety Association, the National Safety Council, and The Zebra internal reports)
What Does Texting While Driving Mean from a Legal Perspective?
If your injuries fall under the serious injury threshold or exceed damages of $50,000 (link to previous blog), you can pursue a lawsuit based on the other driver’s negligence. Your personal injury lawyer must prove the other party had fault in causing the car accident. Texting while driving is against the law and points to negligence. Furthermore, statistics show the dangers involved with texting and provide strong evidence in a car accident case. When assigning fault for the accident, the court is likely to assign a large percentage of fault (if not all) to the driver who was texting.
If you have suffered a serious injury and believe the other driver texted while driving, you should discuss the accident with a personal injury lawyer. A lawyer can explain your rights to recover compensation for damages.
Designating Drivers and Other Ways to Prevent Drunk Driving Accidents
Warmer weather is here and more people are taking to the road. That fact alone increases the risk for car accidents.
Warmer weather also means teenagers who have gotten their driver’s licenses are on the road, practicing their driving. Lack of experience increases accident risks for teen drivers and so does the presence of more bicycles, pedestrians and traffic in general.
What About Underage Drinking and Driving?
Mothers Against Drunk Drivers (MADD) reports the following statistics about underage drinking, and the facts are rather alarming:
- Teens riding with an underage drinking driver are involved in 25% of car crashes
- Out of the 14 million people who are dependent on alcohol, 95% of them began drinking before they reached 21
- Teenagers who drink when young are seven times more at risk of being involved in an alcohol-related crash.
- Over 40% of all 10th graders drink alcohol
However, teenagers are not the age group that has the highest rate of drunk drivers. Drivers between the ages of 26 and 29 have the highest rate of drunk driving incidents (20.7 percent).
What Are Some Practical Ways to Avoid Drunk Driving?
Ways to avoid riding with a drunk driver include:
- Assign a designated driver who is not drinking
- Arrange other transportation (Uber, Lyft or taxi)
- Take your friends keys away from then if they have been drinking
- Offer your guests at parties other alternatives to alcohol (water, soda, etc.)
- Serve food along with alcoholic beverages
- Do not serve alcohol to minors
- Drive defensively and avoid indicators of drunk drivers (weaving or drifting, wide turns, extremely slow speeds, etc.)
Seek Legal Help if Injured in a Drunk Driving Accident
If you are seriously injured in an accident caused by a drunk driver, you should consult with an experienced personal injury lawyer. You would have the right to recover damages for pain and suffering, medical expenses, lost income, future lost income and other related damages.
As brought to light during the course of the #MeToo movement, it is illegal to harass an employee or even a job applicant in New York State due to that person’s sex or gender. However, some of the recent cases of sexual harassment in the press raise more questions than they answer as to what kind and manner of conduct is illegal. In other words, sexual harassment at times is difficult to define and quantify and does not always need to be purely of a sexual nature. So how do we sort it all out? To begin with, harassment does not need to include physical or sexual actions. It is considered prohibited sexual harassment to make offensive remarks about women, but these remarks must be severe or pervasive to be actionable, meaning that a single comment is usually not sufficient. Romantic overtures, rather than purely sexual ones, such as repeatedly asking a coworker on a date, may also be considered sexual harassment. The actions that are considered to be harassment may be directed toward a man or woman and may be committed by men or women. The victim and the harasser may be of the same sex or gender.
Sexual harassment claims fall into two distinct categories: 1) quid pro quo, and 2) hostile work environment.
Quid Pro Quo Sexual Harassment
A claim for quid pro quo sexual harassment may arise when your employer offers, either expressly or by implication, to trade job benefits such as a promotion, pay raise or other job benefit, in return for sexual favors. Typically, quid pro quo sexual harassment is committed by a direct supervisor or manager that is in a position of sufficient power to grant the promised benefit. Given the direct and often immediate impact on the employee, quid pro quo sexual harassment is often extreme and has lasting emotional and psychological effects on the targeted victim.
Here are a few examples of conduct that may be considered quid pro quo sexual harassment: Read More
Hostile Work Environment Sexual Harassment
A claim for hostile work environment sexual harassment arises when the actions that constitute the underlying harassment are “severe”, “frequent” or “pervasive”. This type of harassment may be committed by co-workers as well as supervisors, managers, and even clients or customers. This type of harassment may include sexual or romantic advances, sexually discriminatory remarks, derogatory statements, words, pranks, jokes, signs, physical violence, intimidation, or any sort of conduct or action of a sexual nature taken due to the victim’s sex. Actions or conduct that constitute hostile work environment sexual harassment must cause the person hearing or seeing them discomfort, humiliation, or a significant loss of productivity at work.
Here are a few examples of conduct that may be considered hostile work environment sexual harassment: Read More
Generally, the New York State Human Rights Law applies to employers with four or more employees, while Title VII applies to employers with 15 or more employees. However, the Human Rights Law applies to all employers, regardless of how many people they employ, as of 2015. Even domestic workers like a nanny or maid are protected from sexual harassment. Those individuals employed in New York City (Brooklyn, Bronx, Manhattan, Queens or Staten Island) are more advantageous. New York City Human Rights Law offers more extensive protection than state and federal laws. Incidents that would not be considered severe according to federal or state criteria may be valid within the City of New York.
An employer faces strict liability if the employee has been harassed by an owner or high-level manager. Employers may only be held strictly liable for harassment by lower-level managers and supervisors if they have enough control over an employee’s working conditions. This means that an employee may hold an employer responsible for the harassment, even if the owner did not know that it was happening. However, an employee should report the harassment to the employer and take advantage of any grievance system that the employer has put in place before taking other formal steps.
We at the Van De Water Law Firm, P.C. stand ready to protect your rights and are available for a free consultation at 631-923-1314 or email us if you feel that you have been a victim of sexual harassment. Don’t hesitate to protect your rights.
Location Based Marketing
When you do a search, what do you type into the search box? Well, it depends on what you’re searching. If you’re going to purchase something from an online store, you probably just search the store name. Convenience is at the touch of your fingers, and your purchases arrive without even having to leave your home.
However, let’s say you’re looking for a lawyer to represent you in your divorce. First you type in “divorce lawyer.” If you live on Long Island, you’re not going to want to travel all the way to New York City or Connecticut or New Jersey. Having a California divorce attorney pop up won’t be very helpful either. So you type in “divorce lawyer Long Island.” A number of directories and law firm websites pop up. Even better, wouldn’t it be great if the attorney were close by so you didn’t have to drive too far. At this point you get more specific and type in “divorce lawyer Huntington Station, Long Island.”
The beauty of life in today’s digital world is you don’t have to be sitting in front of your desktop computer either. You can pull out your iPad or mobile phone and do the search wherever you are.
What Does Geographic Location Mean for Business Websites and Web Content?
Thanks to changes in Google’s search algorithms, people typically see search items pop up that are close to their IP address.
Web developers have been savvy about including business location in website content for some time now, but in recent years, the tools have only gotten better. Google My Business has made online marketing even easier and more direct.
What Is a Google My Business Account?
Google My Business enables you to upload information in Google about your business, such as:
- Your location
- Contact information
- Website domain
- Hours of Operation
- Professional photos of your location
Potential customers or clients can find you on Google Maps and when doing a Google search for your business.
For decades, businesses have used marketing and advertising to get the word out about their services and products.
The good news is that today’s online marketing opens up many avenues to market your business online — whether through websites, social media, online searches or other tools.
Marketing professionals can help you maximize your marketing efforts.
What type of marketing is in your world of imagination?
Web Perseverance is an Internet marketing company. We help businesses create strategic and productive marketing on the web.
How Does the “Scaffolding Law” Protect New York Workers?
Falls from heights during construction work often involve falls ladders or scaffolds. However, the differences in falls can be substantial. Workers on ladders may be feet from the ground, whereas workers on scaffolds could be many stories off the ground.
This type of work at heights is so dangerous that the State of New York passed a law, called Labor Law 240, to offer extra protection to laborers, who do construction work at heights.
Labor Law 240 has additional safety regulations that apply when scaffolding or staging is more than 20 feet off the ground or floor. Scaffolds or staging at these heights require safety rails. The scaffolding or staging also must be fastened to prevent it from swaying. Scaffolding should be sturdy enough to bear four times the weight that is placed on it, when in use.
Equipment that Labor Law 240 Requires for Safety Protection
By law, all contractors, owners and their agents (except owners of one and two-family dwellings) involved with construction or building maintenance work must furnish or erect equipment to give laborers proper protection. Equipment includes:
- Other protective devices
What Types of Work Does the Scaffold Law Cover?
The Scaffold Law protects workers doing the following work involved with buildings and structures:
Are Many Workers at Risk for Scaffolding Injuries?
OSHA (Occupational and Safety Health Administration) estimates that 65 percent of construction workers in the U.S. work on scaffolds. Close to three quarters of scaffold accidents resulted from the following:
- Planking or support gave way
- Employee slipped and fell
- A falling object struck the employee
Falls from heights can create a crippling injury. Any worker who sustains an injury of this type should contact an experienced personal injury lawyer for help with recovering compensation. For more information, see our Ladder and Scaffold Accidents page.
How Does Establishing Fault Affect a Car Accident Case?
New York has no-fault automobile insurance. Regardless of who was at fault for causing an accident, insurance covers expenses up to $50,000 (or more, if the no-fault coverage purchased has limits greater than $50,000).
However, what happens when an injury is extremely serious or when costs exceed $50,000 insurance limits? When this occurs, you can sue an at-fault party for damages through a lawsuit.
Serious Injury Threshold in a Car Accident Under NY Insurance Law
Article 51 of the New York Insurance Law defines what constitutes a serious injury in car accident cases.
Any one of the following is considered a serious injury:
- Significant disfigurement
- Loss of a fetus
- Permanent loss of use of a body organ, member, function or system
- Permanent consequential limitation of a body organ or member
- Significant limitation of use of a body function or system
- Medically determined injury or impairment of a non-permanent nature, which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment.
What If You Were Partly at Fault in Causing the Accident?
During the case, a judge or jury assigns both parties a percentage of fault for causing the accident. If the other party was not 100% at fault for the accident, can you still bring a lawsuit? In New York, the answer is “yes.”
Pure comparative negligence law is the basis for personal injury cases in New York. Under this law, your percentage of fault in causing the accident reduces your recovery amount by that percentage. For example, if your damages were $100,000 and you were 50% at fault, the most you could recover would be $50,000. Even if you were 99% at fault you could still recover damages, but in this instance, you could only recover $1,000.
In a car accident case, your attorney must prove the other party had some percentage of fault in order to recover compensation for damages.
If you have questions about your car accident and recovering damages, you should consult with an experienced personal injury lawyer. The initial consultation is free, and you owe nothing unless the attorney recovers compensation on your behalf.
New York City Has Proposed a Biometrics Privacy Law
Biometrics is a new technology identification system being used by a variety of industries for various purposes. The primary means of identification include:
- Retinal scans
- Facial recognition
- Iris scans
Businesses have started using biometrics for time clocks, for entry to secure areas and to login to phones and computers. To this degree, biometrics directly relates to employment situations.
States with Biometric Privacy Laws
While new technology is often uncharted territory from a legal perspective, three states have already adopted biometric privacy laws: Illinois, Texas and Washington. What the laws have in common is requiring consent before collecting biometric information. Illinois law is the most restrictive and requires employers to destroy the employee’s biometric information after a certain period of time if no longer employed by the business.
New York City Proposed Biometric Privacy Law
The National Law Review published an article in January 2019 that described the proposed bill under consideration by the New York City Council. The bill would require businesses to give notice to customers if they are collecting biometric identifier information, and it included a provision that if a person’s information was collected, retained, converted, shared or stored in violation of the law, the person had the right to take legal action.
Under the proposed NYC law, business owners using biometrics would be required to do the following:
- Post a clear and conspicuous sign in plain language that explains the business is collecting, retaining, converting, storing and sharing biometric information.
- Business must also make the following available online:
- How long they are retaining or storing the information
- The type of biometric information collected
- Purpose of the collection
- Whether they are sharing information with third parties
At this point, employers should be aware of the fact that a biometric privacy law has been proposed. Currently, NY State Labor Law Section 201-a states that unless allowed by law, no employer can require a person to be fingerprinted as a condition for securing employment or continued employment.
Our attorneys at Stephen Hans & Associates stay up-to-date with legal changes that affect employment. We represent business owners in employment litigation matters.
On Thursday, February 14, 2019, New York Governor Andrew Cuomo signed into law one of the most important pieces of Civil Rights legislation in years, the Child Victims Act, ensuring that child abusers are held accountable in a civil court of law. Finally, those survivors who have endured unimaginable pain and abuse have a path not only to justice, but perhaps also healing and closure. As Governor Cuomo himself succinctly stated on that date: “This bill brings justice to people who were abused, and rights the wrongs that went unacknowledged and unpunished for too long. By signing this bill, we are saying nobody is above the law, that the cloak of authority is not impenetrable, and that if you violate the law, we will find out and you will be punished and justice will be done”. In short, the Child Victims Act provides long-awaited relief to child victims of sexual abuse by amending New York State’s antiquated laws to ensure that perpetrators of sexual abuse offenses on children are held accountable for their actions, regardless of when the crime occurred. Under the former law, victims of sexual abuse as children had to bring a lawsuit within three year’s of the victim’s 18th birthday, an injustice that led to many victims finding the strength to come forward only learning too late that they were time barred from bringing a civil action against the heinous perpetrators of these crimes. No more says the New York legislature! A one-time window has opened for victims to file civil lawsuits for the immense emotional fallout associated with cases involving the sexual abuse of a child.
Here is what you need to know NOW about this important legislation and how it affects a victim’s exercise of their rights in a court of law. The Child Victims Act:
- Allows victims of these crimes to commence a civil lawsuit any time before they reach 55 years of age;
- Provides victims whose claims have been time-barred with a new opportunity for their day in Court by opening a one-time one-year window for them to finally commence a lawsuit;
- Increases the amount of time during which perpetrators of these crimes may be held criminally accountable by extending New York’s statue of limitations to allow for criminal charges to be filed until a victim turns 28;
- Eliminates the need to file a Notice of Claim for sexual offenses committed against a minor;
- Requires judicial training with respect to crimes involving the sexual abuse of minors; and
- Authorizes the Office of Court Administration to promulgate rules and regulations for the timely adjudication of these revived actions in a Court of Law.
The one-time one-year look back period opens during the summer of 2019, so it is very important for victims of child abuse to consult with a knowledgeable attorney as soon as possible to discuss their rights and develop a plan for your vigorous representation. Stay tuned for more from the Courts on the promised procedural rules and regulations, which will be integral in successfully litigating these cases and will likely be tailored toward early resolution and settlement.
Author: Christopher L. Van De Water