Wages

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.

Court Workers Deserve Overtime, Too

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.

Unpaid intern not protected from sexual harassment - but was she really an employee?

In Wang v. Phoenix Satellite Television US, Judge Castel in the Southern District of New York held that an unpaid intern has no protection from sexual harassment under the New York City Human Rights Law (NYCHRL). The plaintiff in that case was a masters’ degree student at Syracuse University who was hired as an intern for Phoenix, a company producing Chinese language news. She alleged that her supervisor sexually harassed her and denied her a permanent job when she refused his sexual advances. Judge Castel held that Ms. Wang could assert her claim relating to Phoenix’s failure to hire her, but dismissed her claim for sexual harassment, holding that because Ms. Wang was not being paid, she was not an employee, and therefore not protected by the NYCHRL.The Human Rights Law does not define “employee,” and is silent on whether it includes unpaid interns. However, the court’s decision does not address whether the plaintiff should have been paid, and if so, whether that would make her an “employee” under the NYCHRL. Ms. Wang didn’t argue that she was, and did not bring a minimum wage or overtime claim. But the facts of the case may have supported such a claim. According to Ms. Wang’s complaint, her duties included assisting the reporters with shooting news footage, drafting scripts, and editing video footage. She also scripted and reported her own stories on-camera. From this description, it seems that Phoenix was violating the Fair Labor Standards Act and the New York Labor Law by not paying Ms. Wang for her work. For an internship program to be legal, the Department of Labor sets forth a six factor test, each of which must be met: 1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;

2. The internship experience is for the benefit of the intern;

3. The intern does not displace regular employees, but works under close supervision of existing staff;

4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;

5. The intern is not necessarily entitled to a job at the conclusion of the internship; and

6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

http://www.dol.gov/whd/regs/compliance/whdfs71.pdf . If Ms. Wang was actually performing the duties of a reporter, the internship would not pass factors 3 and 4. Presumably, if Ms. Wang didn’t script and report on her stories, a regular employee would have. Interns are not supposed to be an unpaid replacement for another employee, and an internship is not to be an unpaid, months-long trial employment. The persistence of these arrangements both unjustly enriches employers, and forecloses entire fields of employment from people who cannot afford to work for free. Ms. Wang should be entitled to be free from sexual harassment – she should also be paid for her work.

Payroll cards could break the New York Labor Law

Payroll cards - essentially debit cards on which an employee receives their pay - have gotten a lot of attention lately. The New York Times covered this recently with a story highlighting the way the exorbitant fees on some of those payroll cards harmed workers who were earning little enough anyway.  The Times story focused on employees in Texas and Pennsylvania; nevertheless, the article prompted an investigation by the New York State attorney general.  Many employers view these cards as a way of reducing their payroll expenses, or even as a moneymaker - the Times article mentions that the New York City Housing Authority (NYCHA) gets a $1 kickback for each employee they sign up for one of the cards.  Aside from often being a bad deal because of the high fees charged for using the cards (this is how the payroll card companies make their money after all), making employees receive their pay in this way could run afoul of the New York Labor Law. Section 192 of the Labor Law says that no employer can directly pay an employee's wages into a bank "or other financial institution" without the employee consenting, in advance, in writing.  Thus, an employee must consent in advance to the use of those cards, and that consent could not be coerced without violating the law.  But, even if the employee does consent, payroll cards could still be illegal.  Another section of the Labor Law, sec. 193, says that no deductions can be made from an employee's wages, except things for the direct benefit of the employee, such as for insurance premiums, pension contributions, and the like.  An employer could certainly not deduct payroll administration costs from an employee's paycheck.  Logically, if an employer foists its payroll charges on its employees indirectly, through a fee-laden payroll card, it would still break the law.  The New York Department of Labor (DOL) is of the opinion that payment with a payroll card is of the opinion that payroll cards are only permitted if the employee is able to get their wages from the card, in full, at no charge  obviously something not possible at an ATM, unless the employee's net pay happens to be in increments of $20.

In addition, Labor Law section 198-b forbids an employer from demanding "kick-backs" of the agreed-upon wages, which is something not addresed by the DOL's letter.  NYCHA's arrangement where it gets paid a fee by the payroll company for enrolling each employee may violate 198-b, if the fee is paid for by fees incurred by using the payroll card.

Worker's wages have stagnated enough without getting them chiseled by payroll card fees that partly end up, though kickbacks and administrative savings, back in the pocket of the employer.