PROTECTING EMPLOYEE RIGHTS
Federal, state and local laws offer a wide range of protections for all kinds of workers, from undocumented immigrants to white-collar business professionals. Some of the most common types of worker protections include wage and hour laws, anti-discrimination laws, whistleblower protection laws, and certain personal injury and worker compensation laws.
In addition to representing plaintiffs (workers) in employment litigation, Pelton Graham LLC also offers contract and severance review and negotiation services as well as representation for consumer class actions.
Please see below for a quick summary of our practice areas, or click on the links to the side for more detailed information. You can always give us a call or send us an email for a free consultation.
Unpaid Minimum Wage & Overtime
The Fair Labor Standards Act (“FLSA”) is a federal law that sets rules about minimum wage, overtime pay, record-keeping and child labor standards affecting full-time and part-time workers in both the public and private sector. In addition to the federal law, many states and cities offer enhanced protections, including higher minimum wage, laws pertaining to rest or meal breaks and requirements that employers provide wage information.
Two important questions that determine the extent of the protections a worker can expect to receive under the law are:
Am I “exempt” from minimum wage, overtime, or other protections under federal or state law?
Am I an “independent contractor”?
These two questions are important because the laws treat “exempt” employees and “independent contractors” differently from non-exempt employees and often offer fewer protections, particularly as to pay. However, the law states that employers cannot simply state that a worker is “exempt” or an “independent contractor.” Which category a worker falls in depends on their duties, the nature of their work, and how they are paid. In other words, even if your employer says that you are “exempt” or an “independent contractor,” you may still be entitled to receive minimum wage and overtime.
For more information about minimum wage and overtime including links for federal, New York and California minimum wage rates, the most common exemptions, and common independent contractor questions, please see here.
Federal law and the laws of many states and cities also have specific rules for tipped employees, including the minimum wage tipped employees must receive and how tips must be paid. For more information about tip and gratuity rules, please see here.
Sexual Harassment & Discrimination
Sexual harassment is a serious matter that manifests in different ways. Ranging from unwanted bold sexual advances, requests for sexual favors (i.e., demanding sex in return for a promotion), or other verbal or physical harassment of a sexual nature (i.e., subtle remarks that generate an uncomfortable or hostile work environment). The harasser could be a supervisor, a co-worker, or even someone who is not an employee in some limited circumstances. Sexual harassment can occur between individuals of the opposite or the same sex.
Federal, state and local laws protect employees from sexual harassment and retaliation. If you believe that you have been a victim of sexual harassment in the workplace, call us now to discuss your rights!
Sexual harassment is still alive in the workplace. Male boss and female subordinate? Female boss and male subordinate? Same sex harassment? We have seen all kinds of sexual harassment, from repeated uncomfortable comments to extreme demands for physical gratification. Documentation is key – keep a journal detailing instances of inappropriate sexual harassment, including the dates, what happened and any witnesses. Look to gather other evidence of the sexual harassment. Are you able to obtain an audio recording of the harassment? An admission from your harasser via audio recording, email or text message? Has your employer been contacting you on an outside community board such as Facebook?
Sexual harassment and sex discrimination in the workplace are illegal under federal, state and local laws. Under the law, sexual harassment is any unwelcome sexual advance or conduct on the job that creates an intimidating, hostile or offensive working environment. Examples of sexual harassment and discrimination include your boss or any higher-up pressuring for sex or touching you in an offensive manner; repeated offensive comments; and display of pornography. There are generally two types of sexual harassment recognized by the law: “quid pro quo” and “hostile work environment.” “Quid pro quo”, translates as “this for that” and signifies a trade, such as sex in return for a promotion. It is illegal for a superior to demand sex in exchange for benefits in the workplace or as a condition of employment. Employees are also protected from retaliation for complaints about harassment or discrimination.
“Hostile work environment” harassment includes any situation in which an employer, supervisor or co-worker engages in conduct that makes an employee feel uncomfortable and is in some way based on the employee’s sex or gender. Although a hostile work environment may exist simultaneously with a quid pro quo situation, a hostile work environment can occur without any demand for sex in exchange for an employment benefit. Courts have found that sexual jokes, offensive pictures, unwanted touching, leering, and requests for dates constitute sexual harassment in certain cases. The conduct must be offensive and unwanted by the victim. While sexual discrimination most often affects women in the workplace, men are also protected by sexual harassment and discrimination laws. The attorneys at Pelton Graham LLC have represented both men and women in sexual harassment claims.
Sexual harassment and sex discrimination claims can be hard to prove. For this reason, it is crucial to document every episode of harassment and collect as much evidence as possible regarding your employment situation. If you believe you have suffered severe sexual harassment or discrimination, contact Pelton Graham LLC to discuss your legal options.
Racial discrimination involves differential treatment or harassment of an employee based on his or her race, national origin or on perceived characteristics or stereotypes associated with a particular race or ethnic group. People of all races and national origins must be treated equally in all aspects of the employment process, including help-wanted ads, interviews, pre-employment testing, hiring, job assignments, shift assignments, promotions, compensation, benefits, job training, layoffs or termination. Employment discrimination on the basis of race or national origin still happens more often than anyone wants to believe; and it is against the law. If your employer is creating or allowing an intimidating, hostile or offensive work environment to exist, these practices are also against the law.
Racial discrimination includes harassment based on race. This includes any action that causes an employee to feel uncomfortable at work because of his or her race. Such conduct includes racial “jokes,” derogatory comments about an employee’s race, hostile comments or actions toward the employee based on his or her race, the display of drawings or pictures that negatively portray a particular race, or any other action that creates an intimidating, hostile, or offensive work environment, or interferes with the employee’s work performance. The harassing actions must be “severe and pervasive” to constitute illegal discrimination, meaning that an isolated incident or “offhand teasing” would not give cause for a lawsuit.
Differential treatment occurs when an employee is subjected to adverse employment action because of his or her race or national origin, e.g., if the employee is not hired or is fired because he or she is Asian or African-American. More subtle differential treatment occurs when the employer has a policy or practice which inherently discriminates against members of a particular ethnic group. For example, if the employer requires all employees to meet certain height and weight requirements, people of Asian descent (who are statistically lighter and smaller than individuals in other ethnic groups) will be disproportionately affected by this rule. For an employer to legally maintain such a policy, the height and weight requirements must be clearly related to the physical demands of a particular job (such as constant heavy lifting of objects onto high shelves).
It is illegal for an employer to retaliate against an employee for complaining about an employer’s failure to abide by employment laws. An employer may not fire, demote or discipline an employee for any formal or informal complaints made about discrimination, harassment or such other employment law.
Employees performing work on federal, state and municipally funded construction jobs are typically entitled to compensation at no less than the “prevailing wage” rates that are deemed to be prevailing in the locality where the work is performed. New York State’s Department of Labor and New York City’s Office of the Comptroller established and regularly update prevailing wage rates based on category of employment within various counties. The New York State Department of Labor’s schedules are available here and the New York City Comptroller’s Office’s schedules may be obtained here.
In 2008, New York State’s highest court issued a decision in Cox v. NAP Const. Co., Inc., 10 N.Y.3d 592 (N.Y. Ct. of App. 2008), which held that when a contractor agrees in a written contract to pay “wages prevailing in the locality,” employees are considered third-party beneficiaries of that contract and can recover their unpaid prevailing wages. In upholding plaintiffs’ claim for unpaid prevailing wages, the Court of Appeals held that employees’ claims are not preempted by the Davis Bacon Act and that plaintiffs do not have any administrative remedies they can exhaust. After analyzing whether an employee may sue for unpaid prevailing wages, the Court of Appeals held that plaintiffs who have not been paid legally-required prevailing wages maintain a valid breach of contract claims as third-party beneficiaries of the agreements between the public entity and the contractors. Further, any attempt to require employees to return any portion of their wages constitutes an unlawful kickback.
City and state prevailing wage schedules typically require employers to pay the base prevailing wage, a significant “supplement” intended to cover retirement, healthcare and other employee benefit programs, and daily overtime, shift differentials and double-time for work performed on certain holidays. Contractors and other employers who win public works projects but do not pay their employees the legally-required prevailing wages may be prosecuted criminally. The attorneys at Pelton Graham LLC have successfully resolved numerous unpaid prevailing wage lawsuits, on behalf of both individuals and larger classes of employees who were all similarly denied their prevailing wages. Contractors are incentivized to resolve unpaid prevailing wage claims quickly, because government regulators can prohibit contractors from performing further public works projects if they are found guilty of prevailing wage violations.
PREVAILING WAGE COMPLIANCE AND SCHEDULES
NYC Labor Law § Prevailing Wage 230 Schedule (Building Service Employees)
NYC Labor Law § Prevailing Wage 220 Schedule (Construction Workers)
New York State Prevailing Wage Schedule Article 9 (Building Service Employees):
New York State Prevailing Wage Schedule Article 8 (Construction Workers):
New Jersey Prevailing Wage Schedule: https://www.nj.gov/labor/wagehour/wagerate/CurrentWageRates.html
If you believe you are owed unpaid prevailing wages, or if you are required to “kickback” a portion of your pay to receive prevailing wages, contact Pelton Graham LLC to discuss your potential claim and determine how to gather information regarding: (i) the fact that the job is a public-works project; (ii) your hours of work on the job; (iii) wages paid for work on the job; (iv) any fraudulent statement or document that your employer is requiring you to sign in the event that an inspector visits the job; and (v) video or audio recordings regarding unpaid prevailing wages.
Executive Compensation & Agreements
Executives, top sales and marketing people, as well as professionals specializing in certain technical fields are often given employment contracts to review and agree to prior to accepting a position, as a result of a merger and acquisition deal for public and private companies and/or prior to an IPO.
In these positions, employment contracts are used to set forth the specific terms and conditions of the job. Terms often include the duration of a job, responsibilities and expectations, salary and raise stipulations, acceptable reasons for termination, and severance pay. In these agreements, companies often include restrictive clauses such as non-competes, confidentiality or restrictions against solicitation after the employment comes to an end.
The lawyers are Pelton Graham are able to aid in reviewing your employment contract and negotiating desired terms.
If you believe your employment contract has been violated, you may be able to recover economic damages for any such violation. In these situations, it is key to have an experienced lawyer by your side to safeguard your rights. Please contact us now to discuss your rights!
Many employees, most notably the hundreds of thousands of waiters, busboys and food runners across the country, receive the bulk of their compensation in the form of tips or mandatory service charges applied to customers. In light of that, it is vital for employers to follow specific laws pertaining to tipped employees. First of all, no matter how much an employee receives in tips, the employer must also pay the minimum hourly wage. Many states, including New York, allow employers to “take the tip credit,” lowering the minimum wage by a set percentage.
In New York, the minimum wage for tipped employees who are service employees or
food service workers are as follows:
New York City Large Employers (11 or more employees): $10.85 per hour ($12.50 per hour on and after December 31, 2018);
New York City Small Employers (10 or fewer employees): $10.00 per hour ($11.25 per hour on and after December 31, 2018, $12.50 per hour on and after December 31, 2019);
Long Island and Westchester: $9.15 per hour ($10.00 per hour on and after December 31, 2018, $10.85 per hour on and after December 31, 2019, $11.65 on and after December 31, 2020, $12.50 on and after December 31, 2021)
Remainder of New York State: $8.65 per hour ($9.25 per hour on and after December 31, 2018, $9.85 per hour on and after December 31, 2019, $10.40 per hour on and after December 31, 2020).
Food Service Workers:
New York City Large Employers (11 or more employees): $8.65 per hour ($10.00 per hour on and after December 31, 2018);
New York City Small Employers (10 or fewer employees): $8.00 per hour ($9.00 per hour on and after December 31, 2018, $10.00 per hour on and after December 31, 2019);
Long Island and Westchester: $7.50 per hour ($8.00 per hour on and after December 31, 2018, $8.65 per hour on and after December 31, 2019, $9.35 on and after December 31, 2020, $10.00 on and after December 31, 2021)
Remainder of New York State: $7.50 per hour ($7.85 per hour on and after December 31, 2019, $8.35 per hour on and after December 31, 2020).
Fast Food Employees: No tip credit is permitted for fast food employees.
If you receive a significant portion of your income through tips and are paid no hourly wage or an hourly wage less than the above minimum wages, contact Pelton Graham today. You may be able to file a claim for lost wages.
Second, even if an employer “takes the tip credit,” the employer must pay overtime at a rate of 1.5 times the regular minimum wage, minus the tip credit for all hours worked beyond 40 per week. For example, for a food service employee in New York City at a large employer, the overtime rate must be $13 * 1.5 = $19.50 minus the tip credit (which is $13 less $8.65, or $4.35), or $15.15.
Third, employers are permitted to institute a “tip pool,” meaning that tips are all pooled together and then redistributed according to a preset plan. However, a tip pool may not include managerial employees or back-of-house employees such as chefs, line cooks and dishwashers. If you believe that portions of your tips are being unlawfully distributed to managers or back-of-house employees, contact Pelton Graham today.
Finally, employers may not require tipped employees to forfeit some of their tips in order to receive their hourly wages. This practice, known as a “kickback,” is illegal under the New York Labor Law. If your employer forces you to forfeit some portion of your tips in order to receive the rest of your wages, contact Pelton Graham today.
BLOWING THE WHISTLE ON FRAUD
Whistleblowers are an important part of the government’s fight against corporate corruption, especially company insiders who have access to information and analysis that may not be widely available. In light of the economic recession and massive corporate frauds rocking entire industries, federal and state government agencies have created lucrative programs to reward whistleblowers who come forward with valuable information. Whistleblowers are most commonly inside employees, but competitors may also have valuable information that can lead to a whistleblower action.
While whistleblowers report corporate fraud in all industries, whistleblower actions are most common in the areas of:
Health care and pharmaceuticals
National defense contracting
Banking and mortgage
Within these and other industries, there are many varieties of corporate fraud that federal and state government are extremely interested in learning about from corporate insiders and other people with knowledge:
False or exaggerated billing or billing estimates made to government agencies orcontractors who in turn bill the government;
Underpayment of taxes as a result of misclassification of employees, mischaracterization of income, deceptive calculations of assets or losses, or any other fraudulent or false reporting;
False corporate filings or records that contained artificially inflated income, undisclosed risks or losses, or any other false or deceptive information;
False or deceptive statements or reports to government agencies made in order to receive government contracts or other monies or to avoid duties or other charges;
Bribery of foreign officials;
Fraud related to FDA regulation of pharmaceuticals including promotion of off-label drug use (misbranding), kickbacks and other improper inducements to physicians, alteration of drugs or medical products, submission of false information to the FDA and inadequate testing of drug safety;
False certifications that products meet government specifications or guidelines;
Any false or deceptive reports or filings that may endanger people, property or the environment.
The government recognizes that corporate insiders have the most to lose when reporting corporate fraud, and agencies work hard to ensure anonymity throughout the whistleblowing process, including after payment is made. However, in certain instances the government or the Court may be required to disclose a whistleblower’s identity.
If a whistleblower meets certain requirements, he or she may be entitled to up to 30% of the money recovered by the government based on the whistleblower’s information. The more specific and more timely a whistleblower makes a claim, the higher the likely recovery.
The key to successful recovery for information regarding corporate fraud is convincing the government to join, or intervene in, a whistleblower action. For this reason whistleblowers are strongly encouraged to seek out an attorney to assist them in bringing whistleblower claims. Attorneys can gather the most relevant information, create a persuasive narrative of corporate fraud causing injury to the government and citizens, submit information to the correct agencies and communicate with government attorneys. Whistleblowers should act quickly, since different laws pertinent to whistleblower cases have different limitations periods.
CONSUMERS RIGHTING CORPORATE WRONGS
Federal and state governments have enacted numerous laws to protect consumers from fraudulent and deceptive business practices. In New York, two laws in particular that address deceptive acts by business are General Business Law Sections 349 and 350. Any consumer who has been injured by a deceptive act or practice may bring a lawsuit under Section 349. New York law under Section 350 prohibits false advertising, which includes failure to disclose important information and misleading labeling or packaging. Section 350 requires in addition to some harm stemming from a deceptive business practice that a consumer relied on a false misrepresentation.
In addition, where a business has broken an agreement, changed the terms of an agreement, or failed to disclose important terms of an agreement, a consumer who has suffered damages may be able to pursue a breach of contract or similar action even if there is no written contract.
Often in cases involving consumer claims about unfair business practices, consumers choose to pursue a class action. About 50 years ago, Congress recognized that there are many instances where one company’s illegal practices violate the rights of hundreds, thousands, or millions of individuals in exactly the same way. Often, however, the violations are minor enough on an individual basis that these people will not file their own lawsuits. To improve efficiency in the court system and allow these individuals to vindicate their rights, Congress enacted Rule 23 of the Federal Rules of Civil Procedure, paving the way for large-scale cases known as “class actions.” By joining together in a class action, the potential money at stake grows exponentially, forcing the company to pay attention. Class actions are used to right many wrongs, including but not limited to: (1) unlawful company-wide pay practices or discrimination; (2) unfair or deceptive business practices; and (3) securities fraud that occurs when publicly held companies make false or deceptive statements concerning their stock value and viability that eventually cause the value of stockholders’ shares to decrease significantly.
There is a wide variety of business practices that may constitute false, fraudulent or deceptive practices, including:
Hidden, unfair, inflated charges for goods and services;
Excessive or misrepresented fees;
Bait and switch tactics by business, advertising one good or service only to provide customers with an inferior product;
Scams, aggressive debt collection, abusive credit card, tax or mortgage settlement services;
Deceptive refunds or rebates;
Improper or unauthorized use of sensitive personal, medical or financial information;
Deceptive or unfair credit card or banking practices.
Only an attorney can bring a class action lawsuit, and the law limits the amount of time consumers have to seek legal recourse for injuries. The attorneys at Pelton Graham LLC have extensive experience bringing, managing and resolving large, complex class actions that result in real recovery for injured plaintiffs.