Articles Posted in Labor

Owen H. Laird, Esq.

For New Yorkers, both the Fair Labor Standards Act (FLSA) and New York Labor Law provide employees with rights to a minimum wage and, in many cases, overtime pay. However, many workers in New York still do not receive the pay to which they are entitled; for instance, employers may under-report employees’ hours, improperly withhold wages or tips, or simply pay a wage lower than the State minimum.

However, many employees choose to let these violations go because they are “minimal.” An employer might underpay an employee for by a half hour for each pay period, a loss that might only amount to a few dollars a month. The employee could hesitate to pursue those lost wages, afraid of upsetting things at work or doubtful that they can find a lawyer to pursue a smaller case. Despite these potential concerns, employees who believe they are being illegally underpaid should not be afraid.

Yarelyn Mena and Edgar M. Rivera, Esq.

For a claimant to qualify for unemployment insurance benefits, the claimant, among other things, must have lost their job through no fault of their own. This generally means if the claimant was terminated, it must not have been for misconduct. Usually, whether the reason for termination rises to misconduct is simple: stealing, harassment, or fighting is misconduct while forgetfulness, occasional lateness, or being unable to do the job is not. The following two cases are examples of uncertainty; uncertainty in whether the behavior amounts to misconduct and uncertainty as to what actually happened.

In the first case, claimant Shawn Roy appealed his disqualification from receiving unemployment insurance benefits on the grounds that there was no misconduct. The Appellate Division found substantial evidence that supported the Unemployment Insurance Board’s determination that Mr. Roy was discharged as a food service worker due to disqualifying conduct, specifically, he created “violent and sexually explicit videos using LEGO characters, including characters depicting the executive director of the nursing home, claimant’s department head and two female coworkers, and posted the videos online.” The Board was convinced that Mr. Roy was obligated “even during his off-duty hours, to honor the standards of behavior which his employer has a right to expect of him… ” As such, the Board decided that the videos constituted misconduct and, as a result, he was disqualified for collecting unemployment insurance benefits. This case is a lesson in that at least in some circumstances, legal conduct outside of work can constitute misconduct.

Yarelyn Mena and Edgar M. Rivera, Esq.

In a 2014 case, Martin v. The United States, the United States Court of Federal Claims held that an employer’s late payment of wages violates the Fair Labor Standards Act (“FLSA”) and may trigger liquidated ”double payment” damages. The case arose out of the 2013 government shutdown (October 1, 2013 to October 16, 2013) which resulted in the untimely payment of wages to government workers.

Towards the end of 2013, Congress failed to issue funds for government workers, forcing the federal government into a partial shutdown. The shutdown took place in the first two weeks of October 2013, in the middle of a pay period, which resulted in plaintiffs unpaid government employees being paid only for work from September 22 to September 30, and not the first five days in October. Two weeks after their scheduled payday the plaintiffs received pay for those five days. They argued that the federal government’s failure to pay them for hours worked resulted in (i) underpayment that constituted a minimum wage violation, (ii) failure to pay non-exempt employees for overtime hours worked, and (iii) failure to pay even exempt employees for overtime hours worked.

Yarelyn Mena and Edgar M. Rivera, Esq.

On February 13, 2016, Supreme Court Justice Antonin Scalia passed away after 30 years of service on the bench. Justice Scalia was widely renowned for his conservative political views and eloquent legal opinions. His passing left a vacanct seat at the Supreme Court, without Justice Scalia, the Supreme Court; is evenly split between four liberals and four conservatives. The Constitution tasks the President to fill that vacancy by appointing a candidate “by and with the advice and consent” of the Senate.

The media has been whirling as it awaits President Obama’s nomination in light of the President’s ongoing battle with the Republican-filled Senate’particularly because any Republicans in  the Senate have vowed to block any of President Obama’s nominations. In fact, many Republicans in the Senate wish to prevent President Obama from nominating any Justice in hopes that when his term is over at the end of 2016, a new Republican President will nominate a conservative justice.

Jennifer Melendez

On September 22, 2015, Texas-based oil and gas services provider Halliburton agreed to pay over $18 million to 1,000 of its nationwide employees following an investigation by the U.S. Department of Labor (DOL). The DOL is a  federal agency tasked with enforcing the Fair Labor Standards Act (FLSA). The FLSA requires that covered employees receive overtime pay for all hours worked above 40 hours in the workweek.

Halliburton is one of the largest oil and gas providers in the energy industry and employs over 70,000 employees. In an investigation intended to crack down on oil and gas companies that are non compliant with the FLSA, the DOL discovered that Halliburton misclassfied 1,000 of its employees as exempt from overtime pay. These employees included field service representatives, pipe recovery specialists, drilling tech advisors, perforating specialists and reliability tech specialists. Halliburton also neglected to keep records of hours worked by those employees. Failing to keep accurate records of employees’ hours and misclassifying employees as exempt from overtime are violations of the FLSA.  According to the DOL, in order to be exempt from overtime, a position generally must meet specific job criteria and have a salary of no less than $455 a week. Secretary of Labor, Thomas Perez, stated:

Owen H. Laird, Esq.

The most publicized labor and employment disputes in America are those that take place between athletes and the entities that they play for. An unfathomable amount of ink has been spilled discussing Tom Brady’s four-game suspension from the NFL and the federal lawsuit that overturned it, NBA and NHL lockouts, and Major League Baseball’s steroid suspensions. While all these events are coated in the sheen of sport and celebrity, they are essentially labor and employment issues faced by workers everyday: workplace discipline, collective bargaining, and drug testing.

The most recent athletics-related employment issue to grab headlines was the 9th Circuit Court’s decision regarding compensation for college athletes. Currently, rules promulgated by the NCAA – the governing body overseeing the vast majority of intercollegiate athletics – prohibit athlete compensation outside of scholarships. That is, colleges and universities are only allowed to pay for their athletes’ tuition and accompanying academic expenses; they cannot provide wages or other financial benefits. NCAA athletics, particularly college football and college basketball, generate billions of dollars of revenue each year, which is divided between broadcasters, coaches – most notably the head football and basketball coaches who are often the highest paid public employees in their respective states, videogame companies, and academic institutions, to name a few, but not – apart from scholarships – to the athletes themselves. The NCAA argues that amateurism is fundamental to its product; if college athletes were paid, it would irrevocably harm the marketability of college sport. The NCAA rests its arguments on the ideal of the “student-athlete” who is a student first and an athlete second, and whose primary concern is receiving an education. This contention is belied by colleges’ and universities’ efforts to ensure that their athletes remain eligible to compete – for example, arranging for star athletes to receive passing grades with minimal to academic work – avoiding the academic hurdles faced by the rest of the student body.

Edgar M. Rivera, Esq.

On June 10, 2015, in Coleman v. Kohl’s Department Stores Inc., Plaintiff Kaynie Coleman filed a class action in the Northern District of California against Kohl’s, alleging that Kohl’s violated the Fair Credit Reporting Act (“FCRA”) by unlawfully acquiring consumer reports and investigative consumer reports to conduct background checks on perspective, current and former employees, and used that information in connection with the hiring process.

In the employment context, the FCRA provides protection for prospective employees against the misuse and misreporting of credit information.  The FCRA requires employers to follow specific procedures when they use consumer-reporting agencies to obtain “consumer reports” or “investigative consumer reports” on job applicants for employment purposes.  The FCRA defines a “consumer report” as “any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living,” which may include driving records, employment verifications, education verifications, criminal records.  The most common employer violations of the FCRA are: (i) failing to provide a consent form before obtaining a report; (ii) failing to provide stand-alone disclosure and consent forms, i.e., a “separate, clear and conspicuous document”; (iii) failing to provide the applicant with a copy of the summary of rights under the FCRA; (iv) basing hiring decisions on non-conviction criminal data older than seven years; and (v) failing to follow proper pre-adverse and adverse action steps when denying employment based on information contained in a consumer report, for example, providing a copy of the report.

Yarelyn Mena

On April 10, 2014, New York Attorney General Eric Schneiderman issued warning letters to thirteen New York retail chains, including Gap Inc. and Target Corp., notifying each that their “on-call” scheduling practices may violate New York law. On-call scheduling, a phenomenon chiefly in the retail industry, allows employers to cancel employees’ scheduled shifts and demand they pick up unscheduled shifts with little notice.

New York law requires employees who report to work before their scheduled shift, “be paid for at least four hours, or the number of hours in the regularly scheduled shift, whichever is less, at the basic minimum hourly wage.” On-call scheduling lets employers quickly staff their stores on busy days, and send employees home early on slow days, thus, saving money on payroll at the expense of employee convenience. Employers often send employees home on slow days without proper compensation. On-call scheduling is not only a detriment to employee’s salaries, but also to their well-being; employees, especially those who must plan child care or other family accommodations around their work shifts, are greatly inconvenienced by erratic scheduling.

Jennifer MelendezEdgar M. Rivera, Esq.Owen H. Laird, Esq. and Yarelyn Mena

Congress passed the National Labor Relations Act of 1935 (NLRA) to guarantee employees the right to form or join labor organizations. As a result, the National Labor Relations Board (NLRB) was created to enforce those rights. The NLRB guarantees democratic union elections, arbitrates deadlock labor-management disputes, and penalizes unfair labor practices. Some examples of unfair practices the NLRB handles are restraints in labor’s self-organizing rights, employer interference with the arrangement of labor unions, discouragement of union membership, and prohibitions against  collective bargaining. NLRA violations have been the center of a protracted dispute between Green Fleet Systems (GFS) and its drivers.

In early 2012, GFS drivers teamed up with the International Brotherhood of Teamsters Union to begin organizing. In early 2013, the Teamsters notified GFS management of their campaign, initiating a strike to, among things, force GFS to allow its drivers to unionize. In August and November 2013, the Teamsters organized two, brief strikes at the GHS’s facility in which approximately forty drivers participated.  At one of the strikes, GFS employee, Ramon Guadamuz, stated “This is the first time as port truck drivers that we are doing this, exercising our rights. We started in May last year, working together, exercising our right to form our union. We have been struggling against illegal tactics by GFS.” Among Guadamuz and the other drivers were Mateo Mares and Amilcar Cardena. During the same time of the strikes, they also filed wage claims alleging, among things, that GFS misclassified them as independent contractors. Consequently, on June 2014, GFS officials retaliated against Mares and Cardena by terminating their employment.

By Owen H. Laird, Esq.

In a recent decision, the National Labor Relations Board (“NRLB”) expanded its definition of what constitutes a “joint employer.”  This seemingly innocuous change in policy could have significant ramifications for millions of American employees.

The case concerned California company Browning-Ferris Industries (“BFI”), which operates a recycling facility.  BFI employs workers outside of the facility to collect and prepare waste materials (“outside workers”) but uses employees provided by another company, Leadpoint Business Services (“Leadpoint”), to perform tasks inside BFI’s facility, such as sorting and cleaning (“inside workers”).  BFI’s outside workers are represented by a union, which sought to represent the inside workers as well.