Tag Archives: new york labor law

Court Finds Commissioned Jewelry Salesman Qualifies For Outside Sales Exemption Based On His Own Complaint’s Allegations

Because most FLSA exemptions are affirmative defenses, their applicability is not often established by the Plaintiff’s Complaint, of which s/he is “master” and can shape to avoid addressing exemption-triggering duties. There are exceptions. In a recent opinion, a Manhattan federal district judge ruled that a commissioned salesman who traveled from his home office to conduct … Continue Reading

Prominent NY Restaurateur Eliminates Tipping

As New York’s hospitality industry prepares for a reduced tip credit and a fast food minimum wage, one New York restaurateur has announced its intention to eliminate tipping and thus, by extension, use of the tip credit: New York City’s Danny Meyer.  This lengthy Eater feature discusses Meyer’s audacious new Hospitality Included program, noting the … Continue Reading

New York Federal Court Finds Business Properly Classified Translators As Independent Contractors

This month, two New York federal judges reviewing a claim of misclassification rejected a claim for overtime compensation, agreeing that a business properly classified two translators as independent contractors rather than as “employees” under the Fair Labor Standards Act and the New York Labor Law. See Mateo v. Universal Language Corp., 2015 U.S. Dist. LEXIS … Continue Reading

Manhattan Federal Court: Financial Firm Retained Discretion to Award or Not Award Bonus

As we recently noted in our discussion of Massachusetts law, incentive compensation has the potential to become “wages” protected by state labor law once it is “earned.” However, when an employer conveys to the employee that it retains discretion to award or not award incentive compensation in any specific amount, such potential incentive compensation (whether … Continue Reading

District Court Affirms: Business Not Obligated to Pay $350,000 Performance Bonus to Employee Who Never Worked a Day

The importance of detailed drafting of employment documents – particularly those calling for commissions, bonuses or other types of incentive compensation – was highlighted recently by a plaintiff’s claim that, as a conditional hire who never worked a day at now-defunct Lehman Brothers, the Bank’s rescinding of her employment offer triggered its obligation to pay … Continue Reading

U.S. Open Tennis Umpires Properly Classified As Independent Contractors

Service providers vendors (and those vendors’ employees) are free to assert claims that they  “employees” of the entity for which they are providing services under the FLSA under independent contractor misclassification and joint employer theories.  Service providers continue to do so despite limited success, the most recent example being Judge Andrew Carter’s (SDNY) summary judgment … Continue Reading

Brooklyn Federal Court Judge Reiterates And Expands on Prior Opinion Regarding Plaintiff’s Attorneys’ Fees

As the volume of FLSA litigation remains high, an impediment to resolving such cases (even where the underlying claimant’s wage claim already has been resolved) is the issue of the appropriate fee to be paid to counsel representing the worker pursuant to the fee shifting provision of the FLSA and/or applicable state labor law.  Central … Continue Reading

New York State Appellate Court Reinforces Employers’ Right To Define Terms of Vacation Policy

It is well-established under both New York court decisions and Department of Labor guidance that “a former employee is entitled to be paid for vacation pursuant to the ‘contract between the parties.’”  See Matter of Glenville Gauge Co. v. Industrial Bd of Appeals of State of NY, 70 AD2d 283 (1979).  A recent decision, in … Continue Reading

New York Legislature’s Second “Fair Play Act” Enacted to Cover Commercial Goods Transportation Industry

On the heels of similar legislation passed in 2010 for the construction industry, and consistent with the state’s continuing focus on alleged misclassification of service providers as independent contractors, the New York state legislature recently passed the Transportation Industry Fair Play Act, N.Y. Labor Law § 862 et seq.  This legislation creates a “presumption of … Continue Reading

Second Circuit To Issue Important Guidance On Legal Standards Applicable To Unpaid Interns

Recognizing the need to provide clarity to the business community in light of voluminous litigation, the United States Court of Appeals for the Second Circuit recently agreed to hear appeals in the Fox and Hearst intern cases.  Glatt v. Fox Searchlight Pictures Inc., Case Number 13-2467, 11/26/13.  The Court will examine the different legal tests and … Continue Reading

More and More Interns Seeking Allegedly Unpaid Wages

Presumably buoyed by the district court ruling in Glatt v. Fox Searchlight Pictures Inc., 2013 U.S. Dist. LEXIS 82079 (S.D.N.Y. June 11, 2013), a number of copy-cat lawsuits have been filed by former entertainment industry interns in recent weeks in the Southern District of New York’s Manhattan courthouse seeking unpaid wages. Salaam, et al. v. Bad … Continue Reading

Second Circuit Finds Gristede’s Owner to Be Individually Liable “Employer” Under FLSA

Reviewing a district court decision issued two years ago, the United States Court of Appeals for the Second Circuit has affirmed a ruling finding John Catsimatidis, the CEO and owner of New York-area grocery chain Gristede’s (and a New York Mayoral Candidate), individually liable for wages under the FLSA based on the “economic realities” of … Continue Reading

New York Appeals Court Affirms That Policy Language Governs Whether Vacation Must Be Paid Out

While some areas of wage-and-hour law are regulated extensively under the New York Labor Law and the relevant Wage Orders, in the area of vacation pay (and similar paid time off benefits) New York employers can define the terms of the benefit based on the seminal court decision addressing these issues, Glenville Gage Co. v. … Continue Reading

Text of NY Minimum Wage Bill Finalized

The text of the New York legislature’s proposed minimum wage increase confirms increases as previously reported: ·         $8.00 on and after December 31, 2013 ·         $8.75 on and after December 31, 2014 ·         $9.00  on and after December, 2015. Per the language of the amendment, the minimum wage requirements for food service workers and other … Continue Reading

Progress Towards NY Minimum Wage Hike

Reports indicate that the New York State legislature and Governor Cuomo have tentatively reached agreement regarding the terms of the anticipated proposed increase in the state’s minimum wage. As portrayed in news coverage, the latest proposal would increase the minimum wage to $8/hour in 2014, $8.75/hour in 2015 and $9/hour by 2016, but not tie further … Continue Reading

SDNY: 13 Months Between “Protected Activity” and Termination Does Not Support Retaliation Claim

Employers often are frustrated by an employee’s characterization in litigation of prior workplace complaints – many times dating back months or even years – as “protected activity” within the meaning of one or more employment statutes.  Distinguishing true “protected activity” from the a mere employee complaint can be a difficult task.  At the initial stage … Continue Reading

New York State Court Issues Injunction Preventing Eviction of Tenant-Employee With Pending Asserted Wage and Hour Claims

Injunctive relief is infrequently sought in wage-and-hour litigation, which typically focuses on whether an employer properly paid wages for time periods which already transpired, as well as for any period after the filing of an action where the challenged practice means unchanged. However, injunctive relief can be available in FLSA cases. In a prime example, a … Continue Reading

New York Judge: Deduction of Full “Seamless Web” Fees from Gratuities Potentially Violates FLSA, New York Law

In a decision sure to attract attention within the New York hospitality industry, Judge Alison J. Nathan of the United States District Court for the Southern District of New York ruled in a case of first impression that deducting the full amount of service fees charged by internet food delivery sites (including popular web portal … Continue Reading

New York Judge Rejects Interns’ Novel Argument That Paying School Tuition Is An Indirect Wage Deduction

In the latest chapter in the ongoing intern battles currently being waged in the United States District Court for the Southern District of New York, Judge Harold Baer rejected plaintiffs’ novel assertion of unlawful wage deductions. Wang v. Hearst Corp., 2013 U.S. Dist. LEXIS 3768 (S.D.N.Y. Jan. 9, 2013). The Wang litigation concerns the applicability of the … Continue Reading

WTPA Damages Provision Not Retroactive

New York’s Wage Theft Prevention Act does not apply retroactively to violations occurring before the April 2011 effective date (regardless of whether suit already had been filed or not), according to a decision from the Eastern District of New York. Quintanilla v. Suffolk Paving Corp., 2012 U.S. Dist. LEXIS 132469 (E.D.N.Y. Sept. 17, 2012). The Court … Continue Reading

Long Island Judge Finds Company Properly Classified Its Drivers As Independent Contractors Under FLSA and State Law

Whether a business can properly classify an individual as an independent contractor excluded from FLSA coverage is a question governed by the “economic realities” of the relationship between the individual and the business for whom she or he performed services. Under New York State Law, a related but distinct test examines the “degree of control exercised … Continue Reading

Second Circuit Affirms Applicability of Executive Exemption to Warehouse Captains

Last year, in a decision discussed here, District Court Judge Richard Berman of the Southern District of New York determined that warehouse captains for defendant Baldor Specialty Foods qualified for the executive exemption under both federal and New York state law, because their duties were “clearly managerial.” Ramos v. Baldor Specialty Foods, Inc., 2011 U.S. Dist. … Continue Reading
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