Pelton Serpe LLP - Employment Law

Fair Labor Standards Act / Failure to Pay Overtime

The Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay, recordkeeping, and child labor standards affecting full-time and part-time workers in the private sector and in Federal, State, and local governments. Covered non-exempt employees are entitled to receive a minimum wage plus overtime compensation at a rate of not less than one and one-half times the regular pay rate for hours worked in excess of 40 hours per workweek. Pelton Serpe LLP attorneys have prosecuted numerous FLSA failure to pay overtime cases on behalf of employees in the financial services, computer technologies, health care and transportation industries.

FLSA lawsuits typically involve: (1) employers improperly classifying employees as exempt from the FLSA overtime regulations (frequently giving employees fancy job titles while requiring the employees to perform non-exempt job functions); (2) employers requiring workers to perform “off the clock” work for which they receive no compensation; and (3) employers failing to compensate employees for the true number of hours worked, paying “straight time” for hours worked in excess of 40 hours per week or otherwise failing to pay employees at the correct overtime rate. Most states have also enacted labor laws which may provide employees with additional overtime protection. As such, failure to pay overtime claims are typically brought for violations of the FLSA and the state labor laws. FLSA claims are frequently brought individually by the named plaintiff, and on behalf of an opt-in collective action of similarly situated employees.

FLSA Exemptions

FLSA exemptions depend on the nature of the job functions performed by the employee, not the employee’s title or whether the employee was paid a salary. In order to be exempt, employees must typically be paid on a salary basis, and they must perform job duties that the Department of Labor has classified as exempt. Merely paying an employee on a salary basis does not exempt such employee from FLSA overtime requirements. When Congress enacted the FLSA, it created an exemption from the overtime pay requirements for “any employee employed in a bona fide executive, administrative, or professional capacity or in the capacity of outside salesman.” The Department of Labor issued revisions to the overtime provisions of the FLSA in 2004, setting forth the following exemptions for employees paid a guaranteed minimum salary of no less than $455 per week:

1. Business Formation

In order to qualify for the Executive Employee Exemption, all of the following tests must be met:

The employee must be compensated on a salary basis (as defined in the regulations) at a rate not less than $455 per week;
The employee’s primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise;
The employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent; and
The employee must have the authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight.

2. Administrative Employee Exemption

In order to qualify for the Administrative Employee exemption, all of the following tests must be met:

The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week;
The employee’s primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and
The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.

3. Learned Professional Exemption

In order to qualify for the Administrative Employee exemption, all of the following tests must be met:

The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week;
The employee’s primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment;
The advanced knowledge must be in a field of science or learning; and
The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.

4. Creative Professional Exemption

In order to qualify for the Creative Professional employee exemption, all of the following must be satisfied:

The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week; and
The employee’s primary duty must be the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.

5. Computer Employee Exemption

In order to qualify for the computer employee exemption, the following must be satisfied:

The employee must be compensated either on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week or, if compensated on an hourly basis, at a rate not less than $27.63 an hour;
The employee must be employed as a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field performing the duties described below;
The employee’s primary duty must consist of:
1. i. the application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications;
2. ii. the design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications;
3. iii. the design, documentation, testing, creation or modification of computer programs related to machine operating systems; or
4. iv. a combination of the aforementioned duties, the performance of which requires the same level of skills.

6. Outside Sales Exemption

In order to qualify for the outside sales employee exemption, all of the following tests must be satisfied:

The employee’s primary duty must be making sales (as defined in the FLSA), or obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer; and
The employee must be customarily and regularly engaged away from the employer’s place or places of business.

7. Highly Compensated Employees

Highly compensated employees performing office or non-manual work and paid total annual compensation of $100,000 or more (which must include at least $455 per week paid on a salary or fee basis) are exempt from the FLSA if they customarily and regularly perform at least one of the duties of an exempt executive, administrative or professional employee identified in the standard tests for exemption.

Blue Collar Workers

The above-listed exemptions provided by FLSA Section 13(a)(1) only apply to “white collar” employees that meet the salary and duties tests set forth in the Part 541 regulations. The exemptions do not apply to manual laborers or other traditionally “blue collar” workers who perform work involving repetitive operations with their hands, physical skill and energy. Non-management employees working in production, maintenance, construction and similar occupations (such as carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, construction workers and laborers) are entitled to minimum wage and overtime premium pay under the FLSA no matter how highly paid they might be, notwithstanding any of the above-listed exemptions.

Police, Fire Fighters, Paramedics & Other First Responders

The above exemptions do not apply to police officers, detectives, deputy sheriffs, state troopers, highway patrol officers, investigators, inspectors, correctional officers, parole or probation officers, park rangers, fire fighters, paramedics, emergency medical technicians, ambulance personnel, rescue workers, hazardous materials workers and similar employees, regardless of rank or pay level, who perform work such as preventing, controlling or extinguishing fires of any type; rescuing fire, crime or accident victims; preventing or detecting crimes; conducting investigations or inspections for violations of law; performing surveillance; pursuing, restraining and apprehending suspects; detaining or supervising suspected and convicted criminals, including those on probation or parole; interviewing witnesses; interrogating and fingerprinting suspects; preparing investigative reports; or other similar work.

Other Laws & Collective Bargaining Agreements

While the FLSA provides minimum standards that may not be waived or reduced, employers must also comply with any Federal, State or municipal laws establishing a higher minimum wage or lower maximum workweek than those established under the FLSA. Similarly, employers may provide a higher wage, shorter workweek, or greater overtime premium than that required by the FLSA pursuant to a collective bargaining agreement. While collective bargaining agreements cannot waive or reduce FLSA protections, nothing in the FLSA or the Part 541 regulation relieves employers from their contractual obligations under such bargaining agreements. Additional FLSA exemptions may also exist for employees working in the fields of agricultural, emergency services, commercial transportation (rail, marine, trucking & livery drivers) and live-in healthcare providers.

Employees & Hours Covered by the FLSA

The FLSA defines the term “employ” to include the words “suffer or permit to work.” Suffer or permit to work means that if an employer requires or allows employees to work, then any time spent is generally considered to be hours worked. Time spent doing work not specifically requested by the employer, but still allowed, is typically hours worked because the employer knows or has reason to believe that the employees are continuing to work and the employer is benefiting from the work performed. This practice is commonly referred to as “working off the clock.” Further, when am employer requires its employees to correct mistakes in his or her work, the time correcting the mistakes must be treated as hours worked, even if the employee voluntarily performs such work.

Time in which an employee is: (i) required to be at work or (ii) allowed to work for his or her employer is hours worked. Even if a person is hired to do nothing at all, or to do nothing but wait for something to do, that person is still performing work while waiting under the FLSA. The Supreme Court has stated that employees subject to the FLSA must be paid for all the time spent in “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer of his business.”

When calculating the number of hours worked you must consider all the time during which an employee is required or allowed to perform work for an employer, regardless of where the work is completed. An employer is not allowed to sit back and accept the benefits of an employee’s work without considering the time spent to be hours worked under the law. Merely making a rule against such work is not enough where employees fail to abide by their employment practices. Employees generally may not volunteer to perform work without the employer having to count the time as hours worked, whether such work is performed on the employer’s premises, at a designated work place, at home or at some other location.

Contact an Attorney Experienced with FLSA Claims

FLSA/Failure to Pay Overtime claims are fact specific and should be handled by attorneys familiar with this area of the law. You may be entitled to receive back overtime compensation, liquidated damages of 2(x) back wages, costs and attorneys fees, plus certain other measures of damages provided by state law.

The attorneys of Pelton Serpe LLP have experience pursuing FLSA Failure to Pay Overtime claims against companies operating within the financial services, computer technology, medical services and transportation industries. If you feel as though your employer has improperly failed to pay you overtime, please contact Pelton Serpe LLP today by completing the free case evaluation found on this website, emailing info@peltonserpe.com or calling Mr. Pelton at (212) 725-3600 or toll free at (888) 542-8529.

If you are a potential FLSA collective action member in a currently pending case, please see the “Current Cases” section of this website or contact Pelton Serpe LLP to learn more regarding the status of the overtime claim.

Employment Discrimination

If you are being treated differently worse than others in your place of employment you may be a victim of employment discrimination. Employment discrimination may take the form of hiring bias, failure to promote, demoting a qualified employee or terminating a qualified employee. Employment discrimination may also take the form of subjecting an employee to a hostile work environment. In the State of New York it is illegal to discriminate against an employee based on sex, sexual orientation, race, gender, ethnic origins, religion, disability or pregnancy. The attorneys of Pelton Serpe LLP are experienced in prosecuting employment discrimination claims. If you feel as though you are a victim of employment discrimination, we urge you to contact us today to learn your rights under the law.

Sexual Orientation Discrimination

The Sexual Orientation Non-Discrimination Act (“SONDA”) prohibits discrimination on the basis of actual or perceived sexual orientation in employment, housing, public accommodations, education, credit, and the exercise of civil rights. While New York has a long history of prohibiting discrimination based on race, sex and religion, SONDA added the term "sexual orientation" to the list of specifically protected characteristics in various State laws, including the Human Rights Law, the Civil Rights Law, and the Education Law. SONDA took effect on January 16, 2003 and protects individuals who are discriminated against on the basis of sexual orientation from that date forward.

SONDA defines sexual orientation as “heterosexuality, homosexuality, bisexuality, or asexuality, whether actual or perceived.” Thus, the law affords protection where individuals are targeted either based on their actual sexual orientation, or based on what the discriminator believes their orientation to be. SONDA prohibits discrimination on the basis of actual or perceived sexual orientation in various areas, including:

In employment;
In the admission to and use of places of public accommodation, resort, or amusement;
In the admission to and use of educational institutions;
In publicly assisted housing;
In private housing accommodations and commercial space; and
In relation to credit.

SONDA also prohibits discrimination and/or harassment on the basis of actual or perceived sexual orientation in the exercise of an individual's civil rights. The prohibition on discrimination in private housing does not apply to the rental of single-family and owner-occupied two-family homes, while certain religious institutions are exempt from its regulations.

SONDA protects everyone in the State from discrimination on the basis of sexual orientation. Therefore, SONDA applies when a transgender person is discriminated against based upon his or her actual or perceived sexual orientation. In addition, courts in the State have held that transgender people are protected under other provisions of the Human Rights Law, including prohibitions against discrimination on the basis of sex and/or disability.

If you feel you have been the victim of discrimination, you may file EITHER:

A charge of discrimination with the New York State Division of Human Rights ("State Division"), or a local human rights agency, within one (1) year of the most recent act of discrimination; OR
A complaint directly in State court within three (3) years of the most recent act of discrimination.

Various remedies are available if an individual can show discrimination. The victim may be awarded, among other things, compensatory damages for pain and suffering and the monetary value of any lost wages or benefits. Neither punitive damages (which are used to punish particularly egregious conduct) nor attorneys' fees are generally available. However, in housing discrimination cases only, up to $10,000 in punitive damages (paid to the victim) and up to $100,000 in fines (paid to the State) may be ordered. The discriminator may be ordered to take certain affirmative steps, including: hiring, reinstating, or promoting an employee; providing full, equal, and un-segregated accommodations and facilities to all persons; granting an application for credit; or evaluating applications for membership or admission on a nondiscriminatory basis.

The type of relief that is actually ordered will depend on the facts of each case. An individual will not necessarily receive all types of damages in every case, and the discriminator will not necessarily be ordered to take all of the affirmative steps listed above. Contact the attorneys of Pelton Serpe LLP today if you feel as though you are the victim of discrimination due to your sexual orientation.

Sex Discrimination & Harassment

Sex discrimination occurs when a person is treated differently on account of their gender. Sex discrimination in the workplace is illegal as it is prohibited by federal, state and local laws. In legal terms, sexual harassment is any unwelcome sexual advance or conduct on the job that creates an intimidating, hostile or offensive working environment. Sex discrimination includes sexually harassing behavior, which can range from repeated offensive comments, to offensive pornography, to a sexual assault. There are generally two types of sexual harassment that occur in the workplace: "quid-pro-quo" and "hostile work environment." Quid-pro-quo translates to "this for that" and signifies a trade, such as sex in return for a promotion. It is illegal for an employer to use sex as a prerequisite for benefits in the workplace, or as a condition of employment.

"Hostile work environment" includes any situation in which an employer, supervisor or co-worker engages in conduct that makes a co-worker feel uncomfortable because of his/her sex. Although a hostile work environment may exist simultaneously with a quid-pro-quo situation, there does not need to be a demand for an exchange of sex for a job benefit to constitute a hostile work environment. 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, it is also illegal for men to be discriminated against because of their sex.

Conduct that constitutes sexual harassment must be viewed in the context of the entire work environment and considered on a case-by-case basis. If one employee was telling sexually explicit jokes to a co-worker and the co-worker found the jokes funny and entertaining, this would not be considered sexual harassment. However, if the co-worker found the jokes offensive and was made uncomfortable by them, this would be considered sexual harassment.

If your employer is creating or allowing an intimidating, hostile or offensive work environment to exist, or is otherwise discriminating against you based on your sex, contact the attorneys of Pelton Serpe LLP to learn if you have a legal cause of action.

Race Discrimination

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.

Age Discrimination

The Age Discrimination in Employment Act (ADEA) prohibits age discrimination against people over 40. In an age discrimination case, an employee can recover past and future lost wages and benefits, compensation for emotional distress, attorney fees, and punitive damages. The ADEA covers government workers as-well-as private employees over 40 years of age who work for employers with 20 or more employees. Conduct that constitutes age discrimination can range from the most visible examples of bias, such as when a bank hires a young, inexperienced bank teller instead of an older woman who has years of experience in the field, to more subtle instances of discrimination, such as when an executive is moved to a smaller office after he or she reaches age 55, or when a promotion is filled by a younger staff member before the older workers even hear about the opening. Victims of discrimination in the workplace can recover back pay (lost wages), front pay (future lost wages), promotion, or reinstatement to the position that was denied because of discrimination; compensatory damages for emotional distress; punitive damages against an employer if he/she was acting with malice or reckless indifference; attorney’s fees and court costs; and any other award that would make the victim “whole,” (put the victim in the same position he/she would have been absent the discrimination).

Disability Discrimination

The Americans with Disabilities Act (ADA) prohibits discrimination against individuals with disabilities. The ADA applies to employers with 15 or more employees. The laws of your state of municipality may also prohibit disability discrimination and they may apply to smaller companies. Discriminating against a qualified employee because of impairment is not only morally reprehensible; it is against the law. The Americans with Disabilities Act was enacted to protect qualified employees from discrimination based on their disability. We urge you to know your rights if you find that you are being discriminated against because of your disability. If you can perform the essential functions of your job with reasonable accommodation, but you have been denied a job, a promotion, or laid off because of the disability, we urge you to consult with an attorney about your case.

If you can perform a job with an accommodation, an employer must make a reasonable attempt to accommodate your disability. Your employer may not take adverse job action against you because of your disability or because of your request for an accommodation for special equipment, work rules, job hours, reasonable time off, or a transfer to a different available position.

Pregnancy Discrimination

The Pregnancy Discrimination Act, or PDA, states that it is illegal for employers to intentionally discriminate against a pregnant employee, or to maintain a company policy which, intentionally or unintentionally, adversely affects pregnant employees. An employer also cannot discriminate on the basis of childbirth or related medical conditions, and must give the same treatment and benefits to pregnant employees as it does to other temporarily disabled employees. If a pregnant employee is temporarily unable to perform her employment duties due to her pregnancy, her employer must treat her the same as any other temporarily disabled employee, e.g., by providing modified tasks, alternative assignments, disability leave or leave without pay. Further, it is illegal for an employer to retaliate against an employee for complaining about pregnancy or gender discrimination.

If you feel as though you are the victim of employment discrimination or harassment, contact the attorneys of Pelton Serpe LLP today by completing a Free Case Evaluation, emailing info@peltonserpe.com, or by calling (212) 725-3600 or toll free at (888) 542-8529.

Severance Package Negotiations

If your position has been eliminated or you have been asked to resign, you may be able to obtain a more favorable settlement than initially proposed through severance package negotiations, especially if the circumstances surrounding your dismissal are unusual or if you have a legitimate complaint regarding the legality of the discharge. In exchange for your severance, you provide the company a release of all legal claims against the company, as well as a non-disparagement agreement whereby you agree not to speak unfavorably about the company. Employers frequently like to see their employees leave quietly, providing more bargaining power for you to obtain the monetary compensation that you need as you begin your search for future employment.
If your position has been terminated, or you have been offered compensation to leave your position, contact the attorneys of Pelton Serpe LLP for help negotiating a more favorable severance package by completing a Free Case Evaluation, emailing info@peltonserpe.com or by calling (212) 725-3600 or toll free at (888) 542-8529.