Off-the-clock Claims Are Subject to Wage and Hour Lawsuits

Author: Hans & Associates, P.C.

Off-the-clock claims are one source of wage and hour lawsuits. In an off-the-clock claim, employees assert that the employer forced them to spend time working off the time clock and they did not receive pay for it. Ways that off-the-clock work can occur are when employees work through lunch, breaks, stay late or come to work early. According to the Fair Labor Standards Act (FLSA), the rules that businesses must abide by are as follows:

• Employers must pay FSLA covered non-exempt employees at least the minimum wage
• For hours worked over 40 hours a week, employees receive one and one-half times their regular pay
• Hours worked mean all time employees spend on duty, on the work premises or at other designated work places along with additional time they are permitted to work

Business practices that employers can put into place to protect against off-the-clock claims include:

• Enforcing strict rules that prohibit off-the-clock work
• Ensuring supervisors do not allow employees to work off-the-clock
• Have employees keep records of time worked and submit their time records
• Provide open lines for grievances regarding non-compensated work
• Take disciplinary actions for violations of off-the-clock rules

Off-the-clock work can add up to significant amounts of money owed for unpaid work, and businesses are liable for paying.

At Hans & Associates, our New York employment defense lawyers offer business clients affordable services to resolve wage and hour disputes, generally through negotiated settlements outside of court.

FSLA Challenges–How Does Overtime Work with a Fluctuating Work Week?

Author: Hans & Associates, P.C.

In recent years, the changes and complexities of wage and hour laws have made it difficult for small businesses to comply with regulations. Yet, with wage and hour lawsuits on the rise, small businesses are increasingly vulnerable to legal action. It is vital for small businesses to put practices in place that are in compliance with the Fair Labor Standards Act (FLSA). One issue in particular that businesses have trouble with are overtime pay and fluctuating work weeks.

In May 2011, new FLSA revised regulations went into effect. The fluctuating work week method of computing overtime compensation for salaried non-exempt employees allowed employers to pay employees non-overtime bonuses and incentives. Employees with fluctuating work weeks must have an understanding with their employer and receive a fixed salary, whether working a few hours or many hours in the week, whether working over 40 hours or under 40 hours a week . The bonus must be included in the regular pay calculations. Previous to this revision, employers were not allowed to pay employees bonuses under the fluctuating work week method. However, the law was revised because paying bonuses for working undesirable hours is beneficial for employees.

To avoid having one or more employees claim that you did not pay them what they were owed under the FLSA, you must make sure that your business incorporates practices compliant with FLSA rules.

At Hans & Associates, a New York employment defense lawyer can help you review your wage and hours practices to ensure they are sound and provide you with legal defense if facing a wage and hours lawsuit.

Employers Should Start Using New E-Verify Forms

Staying on top of employment law changes can be difficult. On March 8, 2013, the United States Citizenship and Immigration Services (USCIS) published the Revised Employment Eligibility Verification Form, which is a new I-9 Form. Employers must use new I-9 forms by May 7, 2013, or they face penalties. Unless you are required to re-verify an employee, you do not have to complete new I-9 forms for current employees. You can download the new forms at I-9 Central.

Businesses sometimes have confusions about the differences between I-9 Forms and E-verify. I-9 forms have the purpose of helping employers verify employee’s identities and employment authorizations. E-Verify is the internet based system set up by the USCIS that cross references government records to confirm an employee’s authorization to work in the United States. The I-9 form is the nucleus of the E-verify system because it provides data so E-Verify can operate. However, E-verify is still a voluntary system for employers whereas submitting I-9 forms is mandatory. Other differences are that Form I-9 does not require submitting an employee’s Social Security number (SSN) whereas E-Verify requires submitting an SSN. Form I-9 does not require a photo on identity documents and E-Verify does.

At Hans & Associates, our New York employment defense lawyers work with business owners to help them stay current with employment law changes and compliance requirements. We can help you comply with new changes and avoid penalties. In the long run, having an effective employment defense law firm to provide you with legal guidance can save you considerable business expenses.

Stephen D. Hans & Associates Wins Ruling on Behalf of Employer

Federal Court Denies Wage and Hour Claim against Restaurant Owner

Author: Stephen D. Hans &  Nils C. Shilitto

The U.S. District Court for the Eastern District of New York has dismissed a wage and hour lawsuit brought by an alleged employee against Prima Pasta & Café, an Italian restaurant in Howard Beach. Attorney Nils C. Shillito, of the law offices of Stephen D. Han & Associates, represented Prima Pasta & Café in the litigation.

The plaintiff in Lugardo V. Prima Pasta & Café, Inc. brought a claim against Prima Pasta for unpaid wages under the Fair Labor Standards Act and the New York Labor Law . The plaintiff claimed that he worked full time as a dishwasher, and later as a pizza preparer, for the restaurant.  However, the restaurant strongly disputed these allegations, as the plaintiff had actually only worked for the restaurant on a select few occasions, serving private parties.  Although Prima Pasta did not have any records of the plaintiff’s time worked and pay received, the owners contested his claims through their own testimony, and that of the restaurant’s manager, at the federal court trial. Despite the restaurant’s lack of records, the court, finding that the plaintiff’s testimony lacked credibility, dismissed all claims and closed the case.

The Importance of the Decision

In most litigation, the general rule is that the plaintiff possesses the burden of proof at trial.  However, in the context of wage and hour disputes where the employer does not maintain detailed time and payroll records, the courts have long held that an employee need not provide his/her own records to substantiate past time worked.  In such situations, the courts shift the burden onto the employer to disprove the plaintiff’s testimony, which is often difficult to do in the absence of adequate records.  The initial burden placed upon the employee’s testimony is not high.  For these reasons, employers without good record keeping practices often find themselves in difficult positions at trial of a wage and hour dispute.  Although maintaining detailed employment records remains absolutely vital, this case shows that it is nonetheless still possible for an employer to win in court without such records.

“Employers must keep detailed employee time and payroll records to be able to defend against wage and hour lawsuits and Department of Labor investigations with confidence,” noted Stephen Hans.  “However, for those employers who, in the past, may not have had adequate record keeping practices, this ruling gives some hope that they can still win and achieve justice.”

The attorneys at Stephen D. Hans & Associates, P.C., have protected the rights of employers in the New York City metropolitan area since 1979. To schedule an appointment, contact our office online or call us at 718-275-6700.

EEOC Clarifies the Use of Criminal Background Checks in Hiring

Author: Stephen D. Hans

Queens, NY Employment Defense Attorneys

NBC News reported that the Equal Employment Opportunity Commission (EEOC) approved by a four-to-one vote new rules for employers who use criminal background checks when screening candidates for hiring. The new guideline addresses the issue of workers who cannot obtain jobs or who lose jobs because of criminal records or arrests. It also addresses Title VII issues where protected classes receive disparate treatment.

Pepsi Beverages settled for $3.3 million in a case brought before the EEOC, according to a 2012 EEOC news release. The EEOC found Pepsi guilty of hiring discrimination against African Americans because it applied criminal background checks that disproportionately excluded African American applicants from permanent hire based on arrests ― even when they had not been convicted and an arrest was pending.

New EEOC guidelines require employers to obtain details about whether or not an applicant has a conviction, how long ago the individual served time and what the nature of the arrest or conviction was. There should be a different treatment of arrests and convictions. The new rules have the purpose of preventing racial and ethnic discrimination and to accomplish this, employers must only use criminal background checks when they can show that the checks are necessary for the business and are job-related.

If you have questions about applying this EEOC ruling and your liability for discrimination lawsuits when you do a criminal background check, consult an experienced New York employment defense lawyer. For decades, firm founder, Stephen Hans has helped businesses with hiring and discrimination issues.

What Does the National Restaurant Association (NRA) Think about the Proposed Minimum Wage Raise?

Author: Stephen D. Hans

In the State of the Union address, President Obama proposed that Congress should raise the federal minimum wage in stages from $7.25 to $9.00 by 2015. He also proposed continuing to raise the minimum wage based on the cost-of-living index. Raising tipped wages were also part of his proposal.

The National Restaurant Association (NRA) has traditionally opposed minimum wage increases. The NRA provides its own minimum wage overview and explains that restauranteurs must deal with the following challenges to stay solvent:

• Impact of healthcare law
• Rising food costs
• Higher energy costs

Now on top of these concerns ― they face higher minimum wages. The NRA claims that based on the nature of the restaurant industry, raising the minimum wage will impair restauranteurs’ abilities to hire workers. Unlike some other industries, restaurants have high labor costs. Approximately 33 percent of restaurant sales go to cover labor. The pretax profit margin for a restaurant is generally around three to five percent. Most restaurant employees earn above the minimum wage. The statistics quoted in the article indicated that 80 percent of workers who earn the starting wage work part-time, and 70 percent are under age 25 and 46 percent are teenagers.

Stephen Hans of Hans & Associates, P.C. is a New York employment defense lawyer who for more than 30 years has provided affordable legal services to small and medium-sized business owners throughout Queens and New York City.

Federal Judge States that Judicial Approval Not Necessary for FLSA Settlements

Author: Hans & Associates, P.C.

Typically, when parties would settle their disputes over Fair Labor Standards Act (FLSA) issues, such as minimum wage and overtime claims, they had to present their settlement agreement to a U.S. District judge for approval. Because judges routinely approved FLSA settlement agreements, the approval process became a perfunctory procedure. Today with strains on federal and state budgets, courts and other agencies sustaining heavy workloads feel the financial crunch and the need to make processes more efficient. Reuters reported on a ruling from U.S. District Judge Brian Cogan, who rendered a decision that parties in FSLA disputes can settle and voluntarily dismiss cases without judicial approval. Of course, employers do so at their own risk that any release may not be considered effective in future litigation. There is a substantial body of precedent that holding that, when employers settle an FLSA dispute without Department of Labor (DOL) or court approval, the same employee still has the legal right to bring another lawsuit.

Reuters quoted Attorney Stephen Hans in the article as saying that while this judge’s decision is not binding on other courts, it may compel other judges to follow suit. When judges routinely do not alter settlements, why should they cost clients the time to go down to the courthouse for a judge’s seal of approval?

It is a fact that wage and hour cases in federal courts are multiplying like amoebas. Removing the barriers to reaching settlements is a boon for both the court system and parties to FSLA cases because it saves time and expense for everyone.

At Hans & Associates, our New York employment defense lawyers stay current with employment law changes that affect business owners. We devote a significant part of our practice to litigating wage and hour disputes.