New York Employment Attorney Blog
In Battino, et al. v. Cornelia Fifth Avenue LLC, a case pending in the United States District Court for the Southern District of New York, the court recently held that the individual owner of a company that purchased the assets of another company might be held liable for minimum wage violations committed by the seller. This case highlights the limits of limited liability protections afforded individuals, who are shareholders of corporations or members of limited liability companies, for minimum wage and overtime violations.
Articles Posted in Compensation, Wages and Overtime
New York Senator Schumer Introduces Bill to Cover Over-the-Road Bus Drivers Under Fair Labor Standards Act
Senator Charles Schumer (D-New York) introduced a bill amending the Fair Labor Standards Act (FLSA) to cover over-the-road bus drivers and requiring that they be paid overtime for hours worked in excess of 40 in a workweek. Currently, over-the-road bus drivers are exempt from the maximum hours provisions of the FLSA. The bill, The Driver Fatigue Prevention Act (S. 1977), revises the FLSA, to eliminate the overtime exemption, which applies to “any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service.” As a result, over-the-road bus drivers will be entitled to overtime for hours worked in excess of 40 in a given workweek.
An ‘over-the-road bus’ “means a bus characterized by an elevated passenger deck located over a baggage compartment.”
U.S. Department of Labor Releases Fact Sheets on Retaliation
Today, the U.S. Department of Labor Wage and Hour Division released three new fact sheets addressing the topic of retaliation under the Fair Labor Standards Act (FLSA), Family Medical Leave Act (FMLA), and Migrant and Seasonal Agricultural Worker Protection Act (MSPA).
Each of these statutes contain provisions prohibiting an employer from retaliating against an employee for asserting rights covered by each of the statutes.
Fact Sheet #77A, Prohibiting Retaliation Under the FLSA, provides general information concerning the FLSA’s prohibition of retaliating against any employee who has filed a complaint or cooperated in an investigation and is available on the WHD website at http://www.dol.gov/whd/regs/compliance/whdfs77a.htm.
Federal Bill Seeks to Expand Computer Employee Exemption Under Fair Labor Standards Act
Recently, a bill was introduced in the Senate (S.1747), which seeks to expand the scope of the Fair Labor Standards Acts’ current exemption for computer employees. The bill, which is referred to as the “Computer Professional Update” Act (“CPU Act”), attempts to modernize the computer employee exemption by making it applicable to employees, who perform computer-related tasks and work that simply did not exist in the 1990s when the exemption was last modified.
The proposed CPU Act comes in response to the evolution of computer technology, and seeks to take into account changes in the use of computers. For example, the CPU Act seeks to incorporate “information technology” jobs, and would refer to work relating to the internet, intranets, and networks, among other things.
If passed, the CPU Act would result in fewer computer employees being entitled to overtime under the Fair Labor Standards Act.
New York “Interns” Seek Unpaid Wages for Hard Labor
On November 15, 2011, a group of Brooklyn, New York residents filed a federal civil action against the Atlantic Yard Development Company LLC, Forest City Ratner Companies LLC, Brooklyn United for Innovative Local Development and others, alleging that they should have been paid for work they performed pursuant to a pre-apprentice training program. The progam promised jobs to anyone, who essentially agreed to work for free on a building renovation project in Staten Island, New York.
The plaintiffs worked for two months for the developers and ultimately were not given the jobs that they were promised.
Unpaid “Interns” File Minimum Wage and Overtime Pay Lawsuit Against Movie Studio
Two interns filed a lawsuit in federal court in New York City alleging that Fox Searchlight Pictures, the producer of “Black Swan,” misclassified them as unpaid interns despite that they engaged in work, typically performed by paid employees. Among other things, the interns alleged that they performed work such as making coffee, taking out trash, and handling lunch orders.
We wrote about the issue of misclassification of workers as unpaid interns in our May 25, 2010 blog, Department of Labor Issues Guidelines on Unpaid Internships. To be valid, an internship must provide an educational experience, and not just amount to an unpaid job. In recent years, both the United States Department of Labor and New York State Department of Labor have scrutinized internships to make sure that they are legitimate.
Both federal and New York law require that employees be paid the minimum wage for hours worked, as well as overtime for hours worked in excess of 40 in a given workweek. Thus, if the court rules that the interns, who worked at Fox Searchlight Pictures, were really employees, the movie studio will be liable for failure to pay minimum wage and overtime pay.
Exotic Dancers Sue New York’s Penthouse Executive Club
On September 15, 2011, a class of current and former exotic dancers filed a claim against The Executive Club LLC d/b/a The Penthouse Executive Club, in the United States District Court for the Southern District of New York, alleging wage and hour violations. Specifically, the lawsuit against the New York club alleges that the dancers were not paid the applicable minimum wage and overtime pay. In addition, the dancers allege that their tips were misappropriated by the club’s management. The complaint asserts claims under the New York Labor Law as well as the federal Fair Labor Standards Act.
A critical issue in the case is whether the dancers were properly classified as independent contractors. The dancers allege that they were actually “employees” based upon the club’s exercise of control over their work. If the court finds that the dancers were, in fact, common law employees, then the New York Labor Law and Fair Labor Standards Act will apply to the dancers, and could result in liability for unpaid wages.
New York Class Action Suit Against KPMG for Overtime Pay
A former Advisory Associate of KPMG LLP filed a putative class action against the firm for failing to pay her overtime pay in accordance with the Fair Labor Standards Act (“FLSA”) and New York State Labor Law (“NYLL”), for all hours worked in excess of 40 in a workweek. The lawsuit, which was filed in United States District Court for the Southern District of New York, alleges that the firm has a practice of misclassifying Advisory Associates as “exempt” from the overtime pay provisions of the FLSA and NYLL.
According to the Complaint, Advisory Associates perform menial tasks, including “photocopying, data entry and downloading documents.” In addition, the Complaint alleges that the Advisory Associates exercise little, if any, independent judgment and discretion on matters of signficance, and, therefore, were covered by the overtime pay obligations of the FLSA and NYLL.
U.S. Supreme Court Holds that Anti-Retaliation Protection of Fair Labor Standards Act Applies to Informal Complaints
The federal Fair Labor Standards Act (“FLSA”) requires that employers pay employees at least the minimum wage for each hour worked, and 1-1/2 times their regular hourly rate for hours worked in excess of 40 in any workweek. In addition, the FLSA contains anti-retaliation protections to employees who make complaints of minimum wage and overtime violations.
FedEx Ground Settles Misclassification Inquiry with State of Montana
Steven Bullock, Attorney General for the State of Montana has issued a press release stating that FedEx Ground has agreed to pay $2.3 million over its failure to pay unemployment insurance premiums on behalf of its drivers, which FedEx Ground contends are not “employees,” but independent contractors.
Gangemi Law Firm, P.C., together with co-counsel represents all FedEx Ground drivers in New York State, in a class action currently pending in federal court before the Multi-District Litigation Panel, in Indiana.