LIEB BLOG

Legal Analysts

Showing posts with label fair labor standards act. Show all posts
Showing posts with label fair labor standards act. Show all posts

Monday, April 29, 2024

New Overtime Time and a Half Final Rule under the Fair Labor Standards Act

Ready for a big jump in being entitled to overtime pay, which is 1.5 times pay?


The Department of Labor has set new effective earnings thresholds to be entitled to overtime pay per 29 CFR 541.  


Starting on January 1, 2025, we are moving the Fair Labor Standards Act (FLSA) from an entitlement to overtime pay for those making under $35,586 to those making under $58,656 per year ($1,128 per week). Note that this threshold does not apply to employees who are "bona fide executive, administrative, or professional capacity . . . or in the capacity of [an] outside salesman," which terms are defined at 29 CFR 541.


These numbers are particularly important because a worker who is not paid properly can recover 2X back wages (liquidated damages) on unpaid overtime from the prior 2 years. 




Thursday, September 07, 2023

Att'n Employers Wage Theft is NOW Larceny in NYS

Effective 9/6/2023, employers who steal wages are guilty of larceny under Penal Law 155. 


Per the bill's, A154A, justification, "[a]ccording to Cornell University's Worker Institute, wage theft in New York accounts for nearly $1 billion in lost wages each year and affects tens of thousands of workers - that's close to $20 million per week."


Yet, employees who experience wage theft should also remember that they can bring civil claims to get that stolen money back through the New York Labor Law and Federal Fair Labor Standards Act, together with liquidated damages and more. 


That means that if your employer takes your money or doesn't pay as frequently as required or doesn't pay overtime, you have rights to sue for your Wages and Hours.








Friday, October 14, 2022

New Independent Contractor Standard Proposed by Department of Labor for FLSA

If you are interested in wage and hour claims, or better yet if you are a business owner or manager, you are going to want to read this. 


On October 13, 2022, the Department of Labor opened the comment period, which runs through November 28, 2022, for it's revised analysis to determine if an individual is an employee or an independent contractor for a wage and hour claim (i.e., misclassification claim). As a reminder, independent contractors are also known as self-employed workers and freelancers, and are considered to be in business for themselves and therefore, not entitled to minimum wages and overtime pay under the Fair Labor Standards Act (FLSA). 


However, if an employer gets this wrong, by considering an employee an independent contractor, tht employer can be subject to penalty, called liquidated damages, and more. It's a catastrophic mistake that really needs to be avoided at all costs. 


The Proposed Rulemaking is available here in full.


Comments can be made electronically at Federal eRulemaking Portal at https://www.regulations.gov.


In summary, the Proposed Rulemaking is attempting to reassert the Economic Reality Test, where "[t]he ultimate inquiry is whether, as a matter of economic reality, the worker is either economically dependent on the employer for work (and is thus an employee) or is in business for themself (and is thus an independent contractor)." In analyzing the test, the following, non-exclusive facts are generally examined, including: "the opportunity for profit or loss, investment, permanency, the degree of control by the employer over the worker, whether the work is an integral part of the employer's business, and skill and initiative." Under the Proposed Rulemaking, the Department of Labor will examine the factors in the Economic Reality Test by returned to a totality-of-the-circumstances analysis rather than focusing on core factors. No longer will two factors be considered most probative and carry greater weight. Now, all factors matter and should be analyzed when determining whether a worker is an independent contractor or an employee who is subject to rights under the FLSA. 




Thursday, August 12, 2021

Will NY Governor Hochul End the Employer Wage Theft Loophole?

One of the first decisions that Governor Hochul will likely have when she is sworn in should be relatively simple. 


The new Governor should sign S858, which was delivered to the Governor on August 9, 2021, and which amends Labor Law 193 to stop employers from utilizing a narrow definition of deductions to steal wages. The amendment states "THERE IS NO EXCEPTION TO LIABILITY UNDER THIS SECTION FOR THE UNAUTHORIZED FAILURE TO PAY WAGES, BENEFITS OR WAGE SUPPLEMENTS."


As background, the Labor Law authorizes employees to sue to recover "unpaid wages, attorney's fees, and in many cases liquidated damages" for violations of Article 6 of the Labor Law. However, oddly enough, Article 6 does not contain any express obligation to pay wages. Rather, the Labor Law requires timely payment of minimum wage overtime, etc. Employees have used Section 193 ("Deductions from Wages") to try to recover for an employer's complete failure to pay wages with mixed results because Section 193 applies to unlawful deductions from wages, not a failure to pay full wages or an employer, for example, unilaterally reducing an employee's wages for a given pay period for poor performance (not technically considered a "deduction"). Employees, thus, are often left to proceed under a cause of action for breach of contract, which does not permit recovery of liquidated damages and attorneys fees. This new proposed law, which the new Governor should sign, clears up any confusion by clarifying that any non-payment is a deduction and damages are recoverable, including attorneys' fees.


According to the Bill's justification, "employees must be paid what they are owed, no matter what."


If you haven't been paid, you have 6 years under the Labor Law to pursue your wages.


Have you been paid everything that you are owed? If not, you should contact an employment attorney.







Wednesday, October 14, 2020

How to Track a Remote Employee’s Hours Worked in Compliance with the Fair Labor Standards Act

Creating and issuing clear policies and enforcing such policies will make managing remote employees less onerous and less costly. Mordy Yankovich, Esq. provides policy advice in The Suffolk Lawyer.

CLICK HERE to review the full article. 




Tuesday, March 24, 2020

Federal Courts Remain Open Amid the Coronavirus Outbreak

While New York State Courts are currently not permitting individuals or businesses to commence new matters (with extremely limited exceptions), federal courts (Eastern District of New York and Southern District of New York) remain open. Individuals or businesses can, thus, still file new cases in federal court.

Potential causes of action that can be filed in federal court include, but are not limited to:

  • Wage and Hour claims pursuant to the Fair Labor Standards act for unpaid wages, overtime, etc.;
  • Bankruptcy petitions; 
  • Discrimination/Retaliation claims under Title VII (race, age, sex, religion, disability etc.);
  • Interference with rights under the Family Medical Leave Act.