Beranbaum Menken LLP is at the forefront of the fight to get home health aides who work 24 hour shifts all the wages they are entitled to by law. Many home care agencies pay their aides a flat rate for a 24 hour shift which is less than the minimum wage. Even if a union’s collective bargaining agreement (CBA) endorses this practice, it is still against the law. Despite this, some agencies try to avoid responsibility for underpaying their workers by asking the court to dismiss the case because of the CBA. Beranbaum Menken recently prevailed on this issue in Brooklyn Supreme Court, where Justice Nancy Bannon denied a motion by Project O.H.R. to dismiss a case seeking pay for 24 hour shifts. Project OHR had unsuccessfully argued in another case that the CBA required a home attendant’s lawsuit be dismissed; Justice Bannon held that since OHR made the argument once and lost, it couldn’t try it again in a different case. The case will proceed on the home attendant’s claims that if you work 24 hours, you should be paid for 24 hours.
The question of which individuals or entities qualify as the employer or employers of a particular group of workers under the Fair Labor Standards Act (“FLSA”) and associated state wage and hour laws is becoming an increasingly common issue in minimum wage and overtime litigation. As the U.S. Department of Labor observed in its recently-released guidance on the subject, “[t]he growing variety and number of business models and labor arrangements [in the contemporary economy] have made joint employment more common.” In Grenawalt v. AT&T Mobility, LLC, Beranbaum Menken represents a group of security guards employed by a security contractor that provided retail store security to AT&T. We are excited to announce that the firm recently succeeded in arguing before the United States Court of Appeals for the Second Circuit that a reasonable jury could find that AT&T jointly employed the guards when they worked in the telecommunications giant’s Manhattan retail stores, and thus that AT&T is legally responsible for the guards' unpaid overtime wages.
Because it reflects the previously-mentioned evolving character of employment arrangements that have historically informed the concept of joint employment, the relevant case law is extensive and complicated. In its recent order in Grenawalt, in which it overturned the lower court’s decision dismissing AT&T from the case, the Second Circuit identified three separate tests for determining whether an entity is a joint employer:
The first test, derived from Carter v. Dutchess Community College, 735 F.2d 8 (2d Cir. 1984), looks to whether a putative employer exercises “formal control” over a worker. … Because Carter defines employment more narrowly than FLSA requires, satisfying this test is sufficient, but not necessary, to show joint employment. … The second test, set out in Brock v. Superior Care, Inc., 840 F.2d 1054 (2d Cir. 1988), focuses on whether “the workers depend upon someone else’s business … or are in business for themselves,” … and thus is “typically more relevant for distinguishing between independent contractors and employees,” Velez v. Sanchez, 693 F.3d 308, 326 (2d Cir. 2012), than for determining by whom workers who are assumed to be employees are employed. Accordingly, this case hinges on a third test, first developed in Zheng v. Liberty Apparel Co., 355 F.3d [61, 72 (2d Cir. 2013).]
The Zheng test turns on the question of whether the potential joint employer – in this case, AT&T – exercised “functional control” over the workers in question – in this case, the security guards working in AT&T stores. Zheng calls for the consideration of six factors in determining whether AT&T jointly employed the guards:
(1) whether [AT&T’s] premises and equipment were used for [the guards’] work;
(2) whether the [security firm] … had a business that could or did shift as a unit from one putative joint employer to another;
(3) the extent to which [the guards] performed a discrete line-job that was integral to [A&T’s] process of production;
(4) whether responsibility under the contracts could pass from one subcontractor to another without material changes;
(5) the degree to which [AT&T] or [its] agents supervised [the guards’] work; and
(6) whether [the guards] worked exclusively or predominantly for [AT&T].
Although, as the Second Circuit noted, joint employment can exist under this flexible test even where as many as three Zheng factors weigh against such a finding as a matter of law, the court ultimately found that here, not even a single Zheng factor weighs against finding that AT&T jointly employed the guards. Accordingly, the matter has been remanded back to the U.S. District Court for the Southern District of New York, where Beranbaum Menken will proceed with the guards’ overtime claims against both the security contractor and AT&T, as joint employers.
This is an exciting decision for the firm and a good one for plaintiffs’ side employment lawyers generally, because a robust and expansive conception of the individuals and entities that qualify as a plaintiff’s employer for purposes of the FLSA and other wage and hour laws is critical to ensuring that plaintiffs are able to collect the unpaid wages they are entitled to from the individuals and entities responsible. Further, an appropriately broad understanding of joint employment incentivizes companies like AT&T to ensure that their contractors pay workers appropriate minimum and overtime wages. Decisions like this one help stop huge, multi-million dollar corporations like AT&T from using contracting arrangements to benefit from underpaid workers while escaping liability for their underpayment.
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.
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.
New York’s minimum wage increased from $7.25 to $8 per hour on December 31, 2013. This is the first of three increases approved by the state legislature and Governor Andrew Cuomo when they approved the state budget in March. That may not seem like a lot, but that can easily add up to over $1,500/year, even without overtime. And, of course, an increase in the minimum wage means an increase in the overtime pay rate for those who qualify. The new legislation also has future minimum wage hikes built into it – going from $8 to $8.75 at the end of 2014, and then up again to $9 by December 31, 2015. New York joins the ranks of thirteen other states raising the minimum wage this year, some to as high as $9.32 (in Washington state). This all comes on the heels of President Obama’s call for a national raise in the minimum wage to $10.10 per hour by 2015.
Unfortunately, many people making minimum wage still live in poverty, and are forced to on public assistance.
We should also keep in mind that an $8 or $9 minimum wage is certainly higher than the current federal minimum, it falls off historical numbers. In 1960, for example, the minimum wage was 47% of the median wage of U.S. full-time workers. Today, the minimum wage is 37% of the minimum wage. While any increase in the minimum wage is welcome and necessary, the reality is that real wages for the lowest paid Americans have been steadily declining over the past four decades.
A lawsuit filed recently in the Southern District of New York alleges that the Office of Court Administration (“OCA”) has been pressuring court clerks to work overtime without paying them for it. Court documents say that budget cuts and resultant staffing reductions have increased the workload for existing employees, and that impossible demands have forced clerks to work overtime despite not receiving proper compensation. The lawsuit further claims that supervisors have gone so far as to doctor time records to make it appear that clerks were not working overtime when in fact they were. Beranbaum Menken stands with the Plaintiffs in this case. Expecting hourly employees to pick up the slack caused by insufficient funding is not acceptable.
For decades, home health aides – those who provide care to elderly and disabled patients in their homes – have been excluded from our national minimum wage and overtime laws, allowing staffing companies to pay these workers pennies on the dollar, including for grueling 24-hour shifts. This is all about to change, as the Department of Labor announced today that these workers will finally be treated with the respect they deserve.
These workers had been purposefully excluded from the law by the so-called “companionship exemption.” The exemption was initially intended to allow people to hire, say, the local neighborhood teenager to babysit without having to pay the minimum wage. However, the term “companion” was expanded to include home health aides, as though the invaluable service they provide – feeding, preparing meals, cleaning, changing bedsheets, administering medicine – were little more than “companionship.” The reality is, though, that millions of Americans are attempting to support entire families on the income of a home health aide. Now they have a fighting chance to do so.
Read more about this momentous development here:
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.
New York law requires that employees who do construction, repair, service or maintenance work on public job sites (like state- or city- owned buildings such as schools, prisons, public housing developments and public hospitals) must be paid a higher-than-minimum wage (sometimes as much as $75/hour). They also must either receive health benefits or be paid an hourly supplemental benefits rate. This ensures that private contractors can’t undermine union workers by paying less than union wages. However, many non-unionized employees aren’t aware of these laws, and employers exploit that fact by paying them less than they’re owed. Beranbaum Menken aggressively litigates prevailing wage cases in New York and throughout the country. We are one of the leading firms in this area, with years of experience and specialized knowledge.
Beranbaum Menken recently reached a $5.5 million settlement on behalf of a class of nearly 500 New York state and city fire alarm and sprinkler technicians at Simplex Grinnell LP, the largest fire alarm and sprinkler company in the world. WE are currently litigating similar cases against SimplexGrinnel in New Jersey and California. We are also litigating prevailing wage cases on behalf of roofers working at All Roofing Corp., Rashel Construction Corp. Biltmore General Contractors Inc., and Triangle General Contracting, Inc.
Contact us if you think you may be owed prevailing wages, or for more information about any of the cases discussed above.
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.
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.
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 email@example.com.