Class Action

$4.9 Million Prevailing Wage Class Action Settlement Approved

Beranbaum Menken, along with Fay Law Group PLLC of Washington DC and Goldstein, Borgen Dardarian & Ho in Oakland, CA, represent a class of employees working for SimplexGrinnell, one of the largest fire alarm, sprinkler, and building safety companies in the U.S. The lawsuit claimed that Simplex failed to pay its workers the prevailing wages mandated by California law for their fire alarm and sprinkler workers who performed work, particularly testing and inspection work, on public projects in California. In March of 2014, the plaintiffs won a significant victory when Judge Tigar from the U.S. District Court, Northen District of California held that Simplex violated California law by refusing to pay prevailing wages for public testing and inspection work. Yesterday, Judge Tigar approved a class action settlement that will pay the class and their attorneys $4.9 million for their unpaid prevailing wages. Simplex is also obligated to pay prevailing wages for all testing and inspection work in the future.

Building Superintendents and New York Wage and Hour Law: A Forgotten Profession

New York's wage and hour law contains some of the broadest wage payment regulations in the nation, but unfortunately one particular class of workers is currently falling virtually completely through the cracks.  Under the New York Labor Law's supporting regulations, which provide the applicable minimum wage rates in effect in the state, residential building superintendents (or, as the regulations refer to them, "janitors,") are engaged in the only profession categorically excluded from the protection of New York's federal-law-trumping hourly minimum wage rates.  Given that this is an ubiquitous, low-paying profession, particularly in New York City, and one engaged to a significant degree by immigrants -- who often speak limited English -- and other at-risk worker populations, this is a troubling loophole indeed. Under the minimum wage orders contained in the Labor Law's supporting regulations, most employees are currently entitled to $8.75 per hour (N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.1) and one and one half times their regular rates in overtime pay for hours worked over 40 per week (N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.2).  This is a significant, material improvement on the federal minimum wage, which currently sits at $7.25 per hour.

Unfortunately, residential building superintendents have no access to this additional state law premium, and must resort to less-expansive federal wage and hour law for any hour-based claims.  Rather than requiring building superintendents in residential buildings to be paid a minimum hourly rate, the applicable minimum wage order requires only that these employees be paid a minimum weekly rate derived from the number of units in the building in which they work.  Currently, a residential building superintendent must be paid $5.85 per building unit per week.  The overtime provision of the New York building service industry minimum wage order specifically excludes building superintendents from its coverage (N.Y. Comp. Codes R. & Regs. tit. 12, § 141-1.4).

In addition to normal workday hours, New York City residential building superintendents are frequently also required to field resident inquiries and address issues or incidents within their buildings during evening hours.  Some are even subjected to harsh, 24-hour on-call requirements by their employers.  The average apartment building in New York City has around 20 units, but despite this potential for round-the-clock work, a superintendent working in such a building is entitled to only $117 per week under New York law.  Even superintendents in large buildings are unprotected, as this unit rate is capped at just $372.15 per week (N.Y. Comp. Codes R. & Regs. tit. 12, § 141-2.8).

Fortunately, although they are robbed of New York's extra protections, New York building superintendents are not completely without minimum hourly or overtime wage recourse thanks to the Federal Labor Standards Act ("FLSA").  In a lawsuit recently filed in federal court, Bahena et al. v. Park Avenue South Management LLC et al., Beranbaum Menken LLP is representing four current and former underpaid New York City building superintendents in a putative collective action seeking recovery for all similarly situated employees.  Despite being subject to harsh on-call requirements that compel them to work very significant "overtime" hours, these employees receive only a few hundred dollars for all their work each week.  Although New York's seriously deficient wage order leaves them no recourse, the FLSA guarantees these workers at least $7.25 per regular and $10.88 per overtime hour, and Beranbaum Menken is working hard to see that these rights are vindicated.

 

Home Attendant Minimum Wage Class Action Certified

Beranbaum Menken is representing numerous home attendants who were not paid the minimum wage for each hour of their 24 hour shifts.  Our clients work an important and difficult job, caring for the aged and infirm in their homes, and they deserve to at least be paid for the hours they work. Yesterday, Justice Demarest in Kings County Supreme Court in Brooklyn recognized this, and granted our motion to certify the case as a class action in Andryeyeva v. New York Health Care, Index No. 14309/2011.  The court rejected the employer's argument that it need not pay our clients for each hour of their 24 hour shifts, because they allegedly had the opportunity to eat and sleep at night.  Aside from being factually untrue - patients are not given 24 hour home attendant care, unless they need help 24 hours a day - this argument ignores the fact that under New York law, if an employee is required to be at a certain location, ready to work when needed, that employee must be paid for all of those hours.  Click here to read the decision.

Prevailing Wage Case Headed to New York Court of Appeals

Beranbaum Menken’s fight on behalf of SimplexGrinnell employees is headed to New York State’s highest court.  We had filed a class action lawsuit in the federal court in Brooklyn, New York on behalf of Simplex’s employees to recover prevailing wages for fire alarm and sprinkler work on public projects throughout the State of New York.  In 2011, the judge certified the case as a class action, but dismissed the employee’s claims to be paid prevailing wages for testing and inspection work, finding that an opinion letter from the New York State Department of Labor made testing and inspection work ineligible for prevailing wages prior to January 1, 2010.  The class action settled for the non-testing and inspection work, and we appealed the court’s dismissal of the testing and inspection claims. Earlier this year, the Second Circuit Court of Appeals issued its decision.  The Second Circuit found that the case brought up unsettled questions of state law, and so it certified two questions to the New York Court of Appeals - one, what deference should be given to the Department of Labor’s opinion letter, and two, can a company’s subjective understanding of its obligation to pay prevailing wages override the company’s actual legal obligation to pay prevailing wages.

We have always argued that the Department of Labor cannot limit the rights workers have to enforce their prevailing wage obligations through an opinion letter, or through their decision not to enforce the law.  Each worker has an independent right to enforce their right to get paid.  Similarly, the language of a contract cannot excuse a company’s obligation to pay prevailing wages.  We are confident that, after many years of fighting, SimplexGrinnell’s employees are getting closer to receiving the prevailing wages they are entitled to.

The case is likely to be argued before the Court of Appeals near the end of 2014.

Age Discrimination on the Rise

If any more confirmation was needed that age discrimination is virulent, the New York Times has published a couple of articles this summer showing the difficulties older workers face. In an article from July 22, 2013, the Times reported that according to the U.S. Bureau of Labor Statistics, it typically takes an older person who is laid off two to six months longer to find another job than it takes a younger worker -- and the new job is likely to pay substantially less. One study found that a younger job applicant was 40% more likely to receive an interview than a person 50 or over. Younger job applicants needed to send out between 16 and 19 resumes in order to get an interview, while older workers needed 23-27 resumes.In another article, from August 26, 2013, the Times reported that older workers laid off in the Great Recession have had an especially hard time finding work. Less than half, or 47%, of people between the ages of 55 and 64 have gotten new jobs, and for those over 65, the re-employment rate is just 24%. This compares to a re-employment rate of 62% for 20- to 54- year olds. And the jobs that older people find typically pay less than their former job: 18% less for older workers, compared to a 6.7% pay cut for younger workers. And what are the courts doing about age bias? Well, the U.S. Supreme Court is, if anything, going backwards in assuring the enforcement of laws barring age discrimination. In 2009, the Supreme Court, in the case, Gross v. FBL Financial Services, Inc., made proving age discrimination harder than proving other kinds of discrimination (like sex or race), ruling that older workers could no longer prove discrimination by showing that age bias was a “motivating factor” in a hiring or firing decision. Now, older workers have to show that age bias was the “but for” cause of the adverse employment action. Back in 2010, I wrote an article, see “Accessing the Impact of ‘Gross’ on Employment Discrimination Cases,” strategizing how to minimize the impact of the Supreme Court’s decision. Yet, from the perspective of four years after Gross, it appears that if nothing else, the decision has emboldened employers to think they can lay off older workers without legal consequences. Fortunately, here in New York City, we have the New York City Human Rights Law which provides greater protection for victims of discrimination than do the federal anti-discrimination laws. Under the NYCHRL, which requires that bias play “no role” in employment decisions, an employee can still prove discrimination by showing that age bias was a “motivating factor” in the decision. Beranbaum Menken LLP is active in representing older workers fighting age discrimination. Currently, the firm is litigating a nation-wide collective action age discrimination lawsuit against a logistics and transportation company, Mainfreight, Inc. We also are representing individuals in age discrimination lawsuits against such major institutions as JPMorgan Chase.

Employers Protect Themselves with Arbitration Proceedings, SCOTUS helps

The spate of recent Supreme Court rulings against employees are already trickling down through the federal courts. Following the Supreme Court’s lead in AmEx v. Italian Colors, the Second Circuit held that an arbitration clause that prevents employees from bringing class actions was binding and not against public policy, despite the fact that such arbitration clauses pretty much guarantee that employees cannot enforce their rights. When new employees start working, they often sign reams of paperwork, much of which they may not understand. Recently, employers have been including language preventing people from bringing class action lawsuits, or even class action arbitrations, against their employers. What this means is that someone, like Ms. Sutherland in this case, whose overtime rights have been violated to the tune of $1,867 simply cannot find a lawyer to take her case. If she brings a case individually all the way through arbitration, she could end up paying 100 times what she’s owed. But lawyers can’t work for free. The result is that many people with small claims can bring suits together, or they can represent everyone all at once (in a class action). This way the lawyer is paid as a percentage of what she recovers for everyone, spreading the cost around and allowing people to protect themselves from these kinds of violations.

After all, $1,867 is a lot of money to most people. And if an employer, like Ernst & Young in this case, are violating a lot of people’s right to $1,867 in overtime, then the employer may be stealing hundreds of thousands of dollars’ worth of wages in from their employees.

Now, thanks to the Court’s decision in AmEx v. Italian Colors, they can continue to steal their employees’ wages with impunity. As long as the employer's actions only cost the employee a little less than the cost of hiring a private lawyer, the employer knows full well that they’re in the clear. No one can afford to bring a lawsuit, and so long as they can convince new employees to sign on the dotted line, they can prevent employees from pooling their resources and suing together. And what new employee has the power to refuse to sign a document?

The good news is that not all arbitration agreements are binding, and not all employees are helpless to negotiate. At the very least, if you face the prospect of signing an arbitration agreement that doesn’t sound right to you or your employer is threatening to hold you to an agreement that you've already signed, consult a lawyer.

Judge Rules Fox Searchlight "Interns" Are Actually Just Unpaid Employees

A judge in the Southern District of New York has ruled that interns who were essentially treated the same as paid staff -- with the exception of not being paid -- are actually regular employees. Federal and New York law require that employees be paid. While certain "trainees" may be exempt from these requirements, simply calling someone an "intern" is not sufficient. A true internship, that is not required by law to be compensated, must actually provide some degree of education and training that other, paid employees, would not get. So if the only education you get from your internship is the experience of working somewhere -- learning how the photocopier works, getting a line on a resume --  it's not an internship, it's just free labor. That's not OK. In a world where more people must compete for fewer jobs, and where wages have been near stagnant for decades, unpaid internships reinforce the worst kinds of inequality. Unpaid interns drive down wages for everyone, making paid employees work under the threat of being replaced by "interns."  Who can compete with free labor?

Moreover, these unpaid "internships" are increasingly becoming prerequisites to paid employment. This creates a world in which only those who can afford to work for free are able to secure paid work.

This decision is a great step in the right direction. If you are an unpaid intern, and think you should be getting paid, contact us.

Home Health Aides Win Decision on Unpaid Overnight Work

Many home health agencies do not pay their home health aides for the overnight hours of their 24 hour shifts. This is a true hardship for those aides, since the patients they care for, many of whom suffer from dementia, require care throughout the night. Beranbaum Menken has brought several lawsuits challenging this practice, since under New York law, if an employer requires a worker to be in a particular place, and available to work, then that worker must be paid at least the minimum wage for that time, whether working or not. See 12 N.Y.C.R.R. § 142-2.1(b). In one of those cases, Andryeyeva v. New York Health Care, which is pending in Kings County Supreme Court, Commercial Division, Judge Demarest rejected the employer’s argument that it did not have to pay home attendants for their overnight work so long as they were afforded three uninterrupted hours for meals, and eight hours of sleep, five uninterrupted. Click here for the decision: Decision on NYHC first CC motion Judge Demarest held that “the issue of hours afforded for uninterrupted sleep or meals is irrelevant.” This makes it very likely, in our opinion, that our clients will be able to prevail on their claim for their unpaid overnight minimum wages not just for themselves, but for a class of all home attendants who worked 24 hour shifts for New York Health Care, which formerly did business as New York Home Attendant Agency.

BMBB files overtime suit against celebrity bakery

BMBB recently filed suit against "celebrity baker" Cake Man Raven in the U.S. District Court for the Eastern District of New York. The suit is to recover unpaid overtime wages for the bakery employees. Under Federal and New York law, nonsupervisory workers are entitled to time and a half for all hours worked in excess of forty per week.

The case was covered on Page 8 of today's New York Daily News.

http://www.nydailynews.com/gossip/2008/07/28/2008-07-28_celebrity_brooklyn_chef_owes_500g_in_har.html.

The case is filed as a class action, on behalf of all employees who are owed unpaid overtime by Cake Man. If you worked for Cake Man and think you are owed overtime pay, contact Bruce Menken at bmenken@bmbblaw.com.