New York Employment Attorneys Blog

Yarelyn Mena and Edgar M. Rivera, Esq. 

Many companies require their job applicants to undergo criminal conviction checks as part of the hiring process, and use that information to make hiring decisions. Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits employers from discriminating against job applicants based on a protected class; however, discrimination does not need to be intentional—Title VII also prohibits “disparate-impact” discrimination. One way employers violate Title VII is if they have a blanket policy disqualifying all applicants with criminal convictions, the policy has a disparate impact, and the disqualification is not job-related or consistent with a valid business necessity.

A company’s facially neutral rule may be illegal when the rule disparately impacts a protected class and is neither job-related nor consistent with a valid business necessity. In anti-discrimination law, a protected class is a characteristic of a person that cannot be targeted for discrimination, for example, race, color, religion, and national origin. Any discrete group can be disparately impacted. For example, a police department that imposes a height requirement may unintentionally exclude many women, who generally are shorter than men, from the position, although they otherwise are qualified for the position. Accordingly, the police department’s rule violates Title VII if the department cannot show that police offers must be tall to perform the various functions police work requires, which is unlikely to be the case.

A rule that categorically rejects applicants with criminal convictions disparately impacts minority applicants, particularly Black and Latino men. The Equal Employment Opportunity Commission (“EEOC”), which is tasked to enforce Title VII, reports: “African Americans and Hispanics are arrested at a rate that is 2 to 3 times their proportion of the general population. Assuming that current incarceration rates remain unchanged, about 1 in 17 White men are expected to serve time in prison during their lifetime; by contrast, this rate climbs to 1 in 6 for Hispanic men; and to 1 in 3 for African American men.” If an employer relies on criminal convictions records when making employment decisions, Black and Latino are likely to be rejected at a higher rate than White men.

In response to these ongoing problems, the EEOC issued the Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (the “Guide”), which guides employers who use criminal conviction history as a factor when making employment decisions to navigate this complicated area of law. The Guide states that if an employer relies on criminal conviction records, the criminal conviction must be related to the job in question and the employer must show that there is not a less discriminatory “alternative employment practice” that serves the employer’s legitimate goals as effectively as the challenged practice.

When considering an applicant that has a record of past criminal conduct, the employer should notify the applicant that the criminal record might exclude him or her from the position so that the applicant can offer more information about the conviction before the employer makes an adverse hiring decision. Information from the applicant reveals if the conviction is related to the position and to the overall business necessity. Employers should not have policies that outright reject applicants because of a criminal conviction. Employers should consider the nature of conviction, the circumstances surrounding the offense, rehabilitation efforts, the total number of offenses, and the amount of time that has elapsed since the conviction in order to prevent unintentionally discriminating against candidates.

If you believe your employer illegally discriminated against you, please contact The Harman Firm, PC.

Daniela Adao and Edgar M. Rivera, Esq.

Most employees never read their employee handbooks even though such handbooks contain important information that sets the framework for, and terms of, their employment relationships. Employee handbooks often communicate valuable information, such as the employer’s mission, policies, and procedures, as well as employees’ benefits and rights under state and federal employment laws. In some circumstances, an employee handbook may be a contract, creating enforceable rights for employees.

In Braun v. Wal-Mart Stores, Inc., two Wal-Mart employees sued Wal-Mart on behalf of themselves and other similarly situated employees for breach of contract, unjust enrichment, and violations of the Fair Labor Standards Act (“FLSA”), alleging violations of their employee handbook. Wal-Mart’s employee handbook stated that all employees must be paid for meal breaks, and that hourly employees who work between three and six hours per shift must be paid for one short break, and hourly employees who work more than six hours per shift must be paid for two short breaks. Under Pennsylvania law, a handbook is enforceable against an employer if a reasonable person in the employee’s position would interpret its provisions as evidencing the employer’s intent to supplant the at-will rule and be bound legally by its representations in the handbook. The employees claimed that, contrary to their employee handbook, Wal-Mart frequently denied them their meal and short breaks and, when they did receive those breaks, they were not paid for that time. Although federal law does not require employers to provide meal and short breaks, the FLSA requires employers that do offer meal and short breaks to pay their employees for interrupted meal breaks, i.e., meal periods in which employees perform work, and for all short breaks.

The Pennsylvania Supreme Court affirmed the judgment of Pennsylvania’s Superior Court that Wal-Mart’s employee handbook constituted a contract and that Wal-Mart had, among other violations, breached that contract. The court ordered Wal-Mart to pay approximately $188 million dollars to the class, which was composed of approximately 187,000 Wal-Mart employees who worked in Pennsylvania between 1998 and 2006. On March 13, 2015, Wal-Mart filed a petition for certiorari with United States Supreme Court (“SCOTUS”) to review whether the Pennsylvania courts incorrectly subjected Wal-Mart to a “Trial by Formula” to produce class-wide “common” evidence on key elements of the plaintiffs’ claims. SCOTUS has not yet decided whether to hear this appeal.

Employers must follow their own employee handbooks. Wal-Mart’s meal and short break policy had the same force and effect as a contract. Employees should read their employee handbooks to make sure their employers are following their policies. If you believe your employer has violated your rights, contractual or otherwise, please contact The Harman Firm, PC.

Ciera Ambrose and Edgar M. Rivera, Esq.

Epilepsy is one of the most common and serious neurological disorders, affecting approximately 65 million people globally. Adult onset epilepsy is particularly devastating because developing a life-limiting disability at an advanced age is an incredibly stressful challenge—every day life activities require more time and effort, and there are new expenses to bear. The last thing that anyone needs during this time of vulnerability is an employer threatening to terminate employment. The Americans with Disabilities Act (“ADA”) prohibits discrimination in all forms against disabled employees, including qualified individuals living with epilepsy. The ADA provides comprehensive civil rights protections to individuals whose medical conditions interfere with life activities; however, employers often put their own benefits and conveniences ahead of those of their employees, resulting in violations of the ADA.

In Ward v. Grayson County, Texas, Marshall Ward, a Texas Sanitarian worker, alleged that Grayson County terminated his employment for symptomatology of adult onset epilepsy. Mr. Ward worked for Grayson County for over twenty years, when, in 2012, he experienced his first seizure. He alleges that in response, Grayson County placed him in the position of Eligibility Clerk, resulting in a substantial reduction in pay. In October 2013, Grayson County started to investigate Mr. Ward for “violating policies.” Shortly thereafter, he was terminated for allegedly staring at female coworkers’ breasts. Mr. Ward denied the allegation and had never been accused of inappropriate behavior of any kind during his twenty-year tenure. Mr. Ward claims that the accusation was pretext to terminate his employment because of his epilepsy. The case is pending in the Eastern District Court of Texas.

In EEOC v. LHC Group, Inc., the EEOC brought an enforcement action under the ADA on behalf of Kristy Sones against her employer, LHC Group, Inc., alleging she was terminated because she had an epileptic seizure at work. LHC provides hospice, telehealth, private duty and long-term acute care through home and facility-based services. Prior to being hired, Ms. Sones informed LHC that she had previously suffered one seizure. Ms. Sones had annual physicals during her employment and disclosed her epilepsy and the medications she was taking to LHC. After performing successfully as a Field Nurse for several years, Ms. Sones was promoted to Team Leader (LHC denied ever promoting her). Two months later, Ms. Sones had a seizure at work. Less than a month after Ms. Sones returned to work, LHC terminated her, claiming that her seizures made her a liability to the company. The EEOC alleged that LHC failed to accommodate Ms. Sones’ disability and discriminated against her on the basis of that disability by terminating her employment. LHC moved for summary judgment and the district court ruled in favor of LHC, concluding that the EEOC failed to show that Ms. Sones was qualified to serve as a Field Nurse or Team leader, and that LHC’s proffered reason for terminating Ms. Sones was legitimate.

The EEOC appealed to the Fifth Circuit on the issue of which elements a plaintiff must prove to show disability discrimination: (1) that she was subject to adverse employment decision on account of her disability; (2) that she was subject to an adverse employment action and was replaced by a non-disabled person or was treated less favorably than non-disabled employees; or (3) that she was subjected to an adverse employment action on account of her disability or the perception of her disability, and she was replaced by or treated less favorable than non-disabled employees. The Fifth Circuit decided that the first formulation was the correct one to apply to disability discrimination cases, joining the Second Circuit, as well as the First, Fourth, Sixth, Seventh, and Tenth Circuits.

Following the above-mentioned determination, the Fifth Circuit concluded that Ms. Sones was not qualified to be a Field Nurse because the job description required her to drive a car and her epilepsy prevented her from doing so; however, there were genuine disputes of material fact regarding whether Ms. Sones was promoted to Team Leader—for which she was qualified—whether LHC could reasonably accommodate her disability in this position, and whether her disability played a role in LHC’s decision to terminate her. The Fifth Circuit remanded the case back to the district court where it is currently pending.

During the ADA’s twenty-four years of existence, it has protected disabled employees from their employers’ discrimination, giving countless people the freedom to treat their medical conditions without losing their jobs. If you believe your employer has wrongfully discriminated against you based on epilepsy or any other disability, please contact The Harman Firm, PC.


Yarelyn Mena and Edgar M. Rivera, Esq.

Your first internship is an exciting experience full of firsts—your first time working in an office, first time wearing business clothes, first time reporting to a boss. But one first no one anticipates is your first lawsuit. For many interns, that is the reality. Employers frequently—and improperly—fail to pay their interns any wages at all, requiring interns to sue the first company for whom they worked.

Tommy Hilfiger USA, Inc. and Fendi North America, Inc. face a proposed class action lawsuit alleging that these entities misclassified interns as exempt from minimum wage and overtime requirements. The class of more than fifty (50) interns alleges that they should have been classified as entry-level employees because they were required to do the work of employees and did not receive any educational training typical of an internship. Melanie Zuccarini, one of the interns, claims to have worked more than forty (40) hours per week, guiding tours of the corporate office, organizing the inventory, and running errands without compensation. These tasks were critical to Tommy Hilfiger’s business and, had it not been for interns like herself, Tommy Hilfiger would have had to hire employees to do these jobs. Should the Court find in favor of the plaintiffs, both fashion giants are liable for violating federal and state wage and hour law.

Tommy Hilfiger and Fendi are just the latest fashion houses facing class actions. The crux of the problem is that employers, and particularly fashion houses, often misclassify entry-level employees as interns to avoid paying wages. Interns are workers. Under the Fair Labor Standards Act (“FLSA”), all covered and non-exempt workers must be paid a wage unless their internships meet the following requirements: (i) the internship is similar to training given in an educational environment; (ii) the internship experience is for the benefit of the intern; (iii) the intern does not displace regular employees; (iv) the employer derives no immediate advantage from the activities of the intern; (v) the intern is not entitled to a job at the conclusion of the internship; and (vi) the employer and the intern agree that the intern is not entitled to wages for the time spent in the internship. Interns in the “for-profit” private sector who qualify as employees must be paid at least the minimum wage. In other words, compensating interns with academic credit and “professional experience” rather than with wages may be illegal depending on the above-mentioned circumstances.

Being paid is not the only legal challenge interns face. Federal, state and city employment anti-discrimination statutes do not apply to unpaid interns. In a vanguard case, Bridget O’Connor, an unpaid intern, sued her psychiatric clinic and one of its doctors for sexual harassment. The court dismissed the case because O’Connor, as an unpaid intern, was not an employee under the law and, therefore, not covered by anti-discrimination statutes. Following this case, several jurisdictions, including the City and State of New York, passed laws specifically protecting unpaid interns from discrimination.

Internship programs are central to the college experience and necessary to gain entrance to numerous professions. Internships provide students with the opportunity to test various career paths, receive professional training, and offer employers a first look at the candidate pool for full-time positions. Internships are not going anywhere. Accordingly, there must be a legal relationship between interns and their employers that adequately protects interns from the lopsided power dynamic between employers and interns. Students are far less knowledgeable of employment rights than their employers, have little to no workplace experience, and are in an inferior bargaining position because supply of interns greatly exceeds available positions. Employers like Tommy Hilfiger exploit these young people, receiving free labor and preventing the creation of new paying jobs.

All workers deserve an equal pay for equal work whether classified as interns or employees, and students’ first encounter with the working world should be enriching, and more importantly, legal. If you are an intern and believe your employer illegally refused to pay you wages you deserve, please contact The Harman Firm, PC.

Ciera Ambrose and Edgar M. Rivera, Esq.

Should an employee be terminated for a social media post that embarrasses or insults his employer? What if the post relates to unsafe working conditions or affects employees’ compensation? Today, many employers have policies calling for the termination of employees for such social media posts; however, not everything that displeases employers that employees may post is fair game for discipline. Some social media activities are protected and, therefore, exempt from employer retaliation.

The National Labor Relations Board (“NLRB”), the federal agency tasked with enforcing the National Labor Relations Act (the “Act”), issued a report on Jan 25, 2012 that underscored two main points regarding the NLRB and social media: employers cannot prohibit protected activities; and an employee’s comments on social media are generally not protected if they are mere grievances not made in relation to any protected activities.  Protected activities include the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.

For example, in Rain City Contractors Inc. and Pacific Northwest Regional Council of Carpenters, carpenters posted a video on YouTube anonymously discussing workplace safety practices. The video was posted after the contractors learned they were working on soil contaminated by arsenic and other toxins. Within ten days of the video posting, the contracting company terminated the contractors and threatened to withhold raises and terminate other employees if they talked about working conditions with outsiders. The carpenters alleged that their employer violated the Act when after posting the video their employer by terminated their employment. The NLRB determined that the YouTube video was protected because the employees voiced concerns about safety in the workplace, and the public airing of their complaints accurately described their concerns about working conditions.

By contrast, in Karl Knauz Motors, Inc. and Robert Becker, an employee’s termination for embarrassing his employer by social media postings was lawful where the NLRB only partially found that an employee’s social media activity was protected. While their employer, a BMW retailer, was planning a major event, two salespersons criticized the quality of the food BMW intended to serve, stating that it did not reflect the luxury vehicles they were selling and, therefore, would hurt sales. After the event, one of the salespersons mockingly posted photos of people holding hot dogs, water, and Doritos, commenting, “[n]o, that’s not champagne or wine, it’s 8 oz. water. Pop or soda would be out of the question. In this photo, [a sales person] is seen coveting the rate vintages of water that were available for our guests.” The NLRB found that posting comments and pictures from the BMW event was a protected activity because it could have had an effect on his compensation. Additionally, after an incident where a salesperson allowed a customer’s thirteen-year-old son to sit in the driver’s seat of a car, resulting in the car driving over his father’s foot and into a pond, the above-mentioned sales person posted photos of the car in the pond with the comment, “[t]his is your car on drugs.” The NLRB found that posting the car in the pond with the comment was not protected because it did not have any connection to the employees’ terms and conditions of employment.

Social media, pervasive in today’s workplace, is a means to communicate and share information, and navigating the nuances of what activities are protected can be extremely difficult. If you have any employment questions regarding social media and protected activities, please contact The Harman Firm, PC.

Yarelyn Mena and Edgar Rivera, Esq.

Imagine that you, your wife, or your partner becomes pregnant. Perhaps you will change your habits—quit smoking, quit drinking, maybe even quit seafood. But will you quit your job? That is a tougher decision. What is important to remember is that it is your decision to make, and not your employer’s. Employers often fail to recognize that a woman has the right to choose to seek time off before, during, and after a pregnancy, and to be able to return to work.

In Hemmerlein v. Bloomberg, L.P., plaintiff Megan Hemmerlein, a political on-air-correspondent for Bloomberg Television (“BT”), alleged that BT violated the Washington D.C. Family and Medical Leave Act (“DCFMLA”) by terminating her employment after she requested DCFMLA leave. After Ms. Hemmerlein informed Bloomberg Media Group’s chief executive officer, Ellen Uchimiya, that she was pregnant, BT pulled her from stories, uninvited her from important networking events, and gave her the first negative performance review she had ever received at BT. A few days into Ms. Hemmerlein’s DCFMLA leave, BT terminated her as part of “ongoing layoffs” and informed her that she could look for another position within the company. However, the other two on-air-correspondents, who were male, were not terminated and, when Ms. Hemmerlein inquired to management regarding the availability of other positions, she did not receive a response. Ms. Hemmerlein claims that her DCFMLA leave was a “motivating factor” in BT’s termination decision.

The DCFMLA is modeled after the Family Medical Leave Act (“FMLA”), a federal law mandating that covered employers—all government agencies, public schools, and private employers with fifty or more employees that work within a seventy-five miles radius—give their employees unpaid leave for specific familial and medical reasons, including pregnancy and parental leave for both men and women. The FMLA is one of several acts that protect pregnant employees from adverse action by their employers. Employees are eligible for FMLA leave if they worked for their employer for at least twelve months (not necessarily continuously) and 1250 hours. After returning from FMLA leave, the employee “must be returned to the same job (or one nearly identical to it),” and applying for and/or taking FMLA leave cannot be the basis for employment decisions such as “hiring, promoting, or discipline.”

If BT’s decision to terminate Ms. Hemmerlein was based on her decision to take FMLA leave, then BT violated the law. Ms. Hemmerlein’s treatment is unjust and representative of what happens to women in many other industries: women are hesitant to take leave for fear of discrimination, and ultimately, termination. Galen Carey of the National Association of Evangelicals stated, “the protection that our society affords to mothers and their unborn children is uneven, and it falls far short of the ideal.” Forcing pregnant employees out of the labor force results in employees choosing between family and work, marginalizing a portion of the workforce.

Pregnancy is not a hindrance to working women. In 2011, the National Partnership for Women and Families reported that working pregnant women made up 62% of women who give birth. Clearly, stereotypes that pregnant women cannot contribute to the workforce are as false as they are archaic. Federal law, including the FMLA, prevents the insidious practice of employers acting on these stereotypes, and prevents the 75% of women who will become pregnant at some point in their careers from being forced out of their jobs.

If you believe your employer has discriminated against you based on a pregnancy or requesting FMLA leave, please contact The Harman Firm, PC.

Ciera Ambrose and Edgar Rivera, Esq.

Recently, the Supreme Court of the United States (“SCOTUS”) heard oral argument regarding whether an employer can be liable under Title VII of the Civil Rights Act of 1964 (“Title VII”) for refusing to hire an applicant based on a religious observance and practice where the employer had no actual knowledge that a religious accommodation was required. In EEOC v. Abercrombie & Fitch Stores, Inc., plaintiff Samantha Elauf, a Muslim teenager, applied for a sales-associate position at Abercrombie & Fitch Stores, Inc. (Abercrombie) and alleged that Abercrombie refused to hire her because she wears a religious headscarf.

Abercrombie, a national chain of “east coast preppy” clothing stores, requires its employees to comply with its “Look Policy” (the “Policy”), which forbids black clothing and caps. If a question arises about the Policy during an interview, or an applicant requests a deviation from the Policy, the interviewer must contact the corporate human resources department, which then determines whether an accommodation should be granted. Ms. Elauf wears a headscarf every day, and did so in her interview, but she neither mentioned her headscarf during her interview nor indicated that she would need an accommodation from the Policy. The interviewer contacted the district manager who directed the interviewer to lower Ms. Elauf’s rating on the appearance section of the application because she wore a headscarf, which resulted in her not being hired.

Abercrombie claims to not have known that Ms. Elauf wore her headscarf for religious reasons and argued that, without such knowledge, there can be no finding of liability. The Equal Employment Opportunity Commission (“EEOC”), on plaintiff’s behalf, argued that when an employer is aware of a potential work-religion conflict, the employer should not be allowed to remain willfully blind, but should initiate the accommodation process. Specifically, employers hold the unique position of knowing whether such conflicts exist, whereas applicants may not know at any time whether their religious practices are in conflict with a rule. Therefore, allowing employers to escape liability by remaining willfully ignorant incentivizes denying employees the opportunity to request accommodations, turning Title VII on its head.

Title VII prohibits private companies from discriminating against its applicants or employees based on their religious beliefs. All people who hold sincere religious beliefs are protected against work-place religious discrimination, including those who belong to organized religions such as Hinduism, Islam, and Judaism, and also those who simply hold religious, ethical or moral beliefs. Religious discrimination includes employers failing to accommodate applicants’ and employees’ religious observations and practices.

An employer must make reasonable adjustments to its work environment to allow an employee to practice his or her religion. Typical accommodations include flexible scheduling, voluntary shift substitutions or swaps, job reassignments, modifications to workplace policies or practices, and dress or grooming practices such as particular head coverings, e.g., Jewish yarmulke or a Muslim headscarf, or certain hairstyles or facial hair, e.g., Rastafarian dreadlocks or Sikh uncut hair and beard.

Although Title VII prohibits religious discrimination, incidents of religious discrimination continue to rise. According to the EEOC, incidents of religious discrimination have doubled over the last thirteen years. If SCOTUS rules in Abercrombie’s favor, employers will be able to protect their discriminatory practices behind a shield of ignorance. Such a ruling would chill religious displays and disincentive employers from accommodating an employee’s religious belief or practice.

Employers frequently violate the law by failing to hire or accommodate people with visible religious practices and beliefs. If you believe your employer has discriminated against you on the basis of your religious beliefs, please contact The Harman Firm, PC.

Daniela Adao

In order to minimize the risk of potential litigation, one common practice by employers is to offer departing employees additional severance benefits in exchange for a waiver of rights and release of liability for all claims the employee may have against the employer. Such claims include those arising under federal or state and local laws protecting employees from employment discrimination.

A waiver of rights and release of claims in a Severance Agreement forms a contract between the employer and the departing employee that limits the employee’s rights to bring suit against the employer for matters arising out of the employment relationship. If an employee signs a Severance Agreement containing a waiver and release of claims and later files a lawsuit against the employer alleging discrimination, the employer will argue that the court should dismiss the case because the employee waived his right to sue by signing the agreement.

Even before addressing the validity of the employee’s discrimination claim, a court will first decide whether the Severance Agreement is valid. If the court determines that the agreement is valid, the employee will be deemed to have waived the right to bring suit, and the court will not even consider the employee’s discrimination claim. Because in most cases courts will enforce a signed agreement, it is extremely important that an employee understand the consequences of his actions to avoid waiving valuable claims that he may have against the employer.

Don’t Give Away Your Rights For Free

First, an employee should never sign a Severance Agreement unless he is satisfied with the employer’s offer. This is important because an employee should never relinquish a valuable right without obtaining something of value in return.

Read The Agreement Carefully Before Signing

Second, an employee must read the agreement carefully before signing it to make sure he understands the benefits he is getting and what he is giving up in return. As mentioned previously, a common provision in a Severance Agreement is a waiver of all claims against the employer. A waiver provision usually contains language stating: “The Employee completely releases the Employer and its directors, officers, employees, agents, from any and all claims, liabilities, and obligations, known and unknown, that arise out of the Employee’s employment including all federal, state, and local statutory claims, including claims for discrimination, harassment, retaliation, etc.”

Seek Legal Advice If You Don’t Understand The Agreement

Third, speak to a lawyer before signing the agreement. In addition to a waiver and release of all claims, there are several additional clauses in most severance agreements that employees should be aware of. For instance, a severance agreement may also contain non-compete clauses prohibiting the employee from working for competing businesses. Often, an attorney can help employees negotiate an agreement to obtain additional compensation.

If you feel that you have suffered discrimination based on a protected category (Race, gender, age, disability, etc.), you should not sign away your legal rights in exchange for severance pay. If you have already signed a Severance Agreement but you believe that you signed a release under conditions of fraud, duress, or mistake, the agreement can possibly be rescinded in special cases if you act promptly. Although it is generally difficult to overturn a release, always consult a lawyer immediately if you believe you were coerced into signing one.

If you have been offered a Severance Agreement and you are not sure what to do, contact The Harman Firm PC. The firm can help you understand and negotiate your agreement. Similarly, if you believe you have been coerced into entering an agreement, The Harman Firm, PC can help you fight the agreement to secure your legal rights.

Yarelyn Mena and Edgar M. Rivera, Esq.

Divers for the popular Uber car service filed a class action complaint against Uber Technologies, Inc. alleging that Uber misclassifies its drivers as independent contractors resulting in the illegal withholding of the drivers’ funds.  Uber provides car services in cities throughout the country via an on demand dispatch system where drivers are hailed and dispatched through a mobile phone application.

The drivers claim that Uber failed to pay their business expenses and the total proceeds owed from customer gratuities. Under California law, employers must reimburse their employees for work expenses that benefit their employer and are necessary for employees to perform their jobs.  Uber does not reimburse its estimated 163,000 drivers for costs such as vehicle maintenance and gas.  Additionally, the drivers only receive a portion of passenger gratuities. Uber explicitly markets that there is no need to tip their drivers because tip is included in payment.

The California Supreme Court applies the “economic realities” test, in which the most significant factor determining whether a worker is an independent contractor or employee is whether the person to whom service is rendered has control or the right to control the worker both as to the work done and the manner and means in which it is performed; however, this determination depends upon a number of factors, all of which must be considered, and none of which is controlling by itself. Such factors include the extent to which the work performed is an integral part of the employer’s business, whether the worker’s managerial skills affect his or her opportunity for profit and loss, and the relative investments in facilities and equipment by the worker and the employer.

Nationally, there is a growing trend of employers falsely classifying their workers as independent contractors to avoid payroll taxes, the minimum wage or overtime laws, and other wage and hour requirements such as meal and rest breaks, and business expense reimbursements.  Additionally, employers do not have to cover independent contractors under workers’ compensation insurance, and are not liable for payments under unemployment insurance, disability insurance, or social security.

This phenomenon is not limited to taxi drivers but includes construction workers, restaurant workers, truck drivers, office technicians, and salon workers. According to Robert Reich, Chancellor’s Professor of Public Policy at the University of California and former Secretary of Labor under President Clinton, “The rise of ‘independent contractors’ is the most significant legal trend in the American workforce—contributing directly to low pay, irregular hours, and job insecurity. What makes them ‘independent contractors’ is the [sic] mainly that the companies they work for say they are.”

Once one company in an industry decides to treat its employees as independent contractors, other companies race to the bottom to increase their competitiveness to the detriment of workers.

Workers who perform a business’s essential work are, for all intents and purposes, employees and should reap the protective benefits of it. If an employer-employee relationship exists—regardless of what the employer calls the relationship is—a worker is not an independent contractor.

If you believe your employer has violated your rights by misclassifying you as an independent contractor rather than an employee, please contact The Harman Firm, PC.


Ciera Ambrose and Edgar M. Rivera, Esq.

Wage theft is the illegal withholding of wages or the denial of benefits that are rightfully owed to an employee. Examples include the failure to pay overtime, failure to pay minimum wage, employers taking illegal deductions from employees’ pay, employees working off the clock, and, at its most extreme, employers not paying their employees at all. Wage theft is common among low-wage workers because these workers generally lack the resources to protect themselves from abusive employers and to assert their rights. Immigrant workers are uniquely vulnerable because their employers often illegally threaten to report them to immigration authorities after affected employees complain.

In the United States, the Fair Labor Standards Act (FLSA) prohibits wage theft; however, the U.S. Department of Labor estimates that about 70% of employers are noncompliant. Workers are robbed between $40 and 60 billion each year, which exceeds the total amount stolen through robbery, burglary, larceny, and auto theft combined, making employers the number one perpetrators of theft in the United States.

The FLSA protects employees from wage theft in all forms and requires employers to keep time records of their employees. Regardless of how small and voiceless a worker may feel going against large, powerful corporations, the FLSA exists to empower workers to bring claims against noncompliant employers and preserves their right to earn a fair living.

In Peralta v Paramount Citrus Cooperative, agricultural workers commenced an action against Paramount Citrus Cooperative (PCC), the United State’s largest fresh citrus grower, accusing PCC of a variety of FLSA violations. PCC paid its agricultural workers piece-rate compensation based on the number of citrus bundles they harvested. This payment scheme resulted in workers being paid less than minimum wage for hours worked at the piece-rate, and not being paid at all for hours they had to wait for work, carry equipment, and travel to and from work sites, and breaks. In addition, PCC released many workers at the end of the season without paying them at all.

Although piece-rate compensation is a legal way to pay employees, employees paid on a piece-rate basis are not exempt from the various requirements of the FLSA, including minimum wage, overtime, and record keeping obligations. Piece-rate compensation schemes are often used in circumstances where the time it takes an employee to complete a task is not relevant; however, this methods should only be used if the employee does not work more than forty hours in a workweek and the employee’s total compensation for the week averages at least the applicable minimum wage.

Employers frequently violate the law by failing to understand the requirements the FLSA imposes. If you believe your employer has discriminated against you with regard to wage theft, please contact The Harman Firm, PC.