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.


Finally! DOL Gives Home Health Aides Minimum Wage and Overtime Protections

  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:




High Level CEOs Must Ensure Everyone Gets Paid

John Catsimatidis, who is running for Mayor of New York, is the President and CEO of Gristedes Foods Inc., a grocery chain based in New York City. Gristedes workers filed a class action law suit in 2004 claiming unpaid overtime violations under the Fair Labor Standards Act. The workers settled with Gristedes for $3.5 million. However, the store defaulted on its obligations. The Second Circuit Court of Appeals just ruled that, even if the grocery store would not pay, the workers were still entitled to the overtime they earned and that Mr. Castimatidis would be personally liable. In the case, Torres et al. v. Gristedes Operating Corp. et al., the court ruled that Mr. Castimatidis was an “employer” for purposes of the law. Even though he was a high level executive who did not have day-to-day contact with all the workers, he made decisions that directly affected the “nature of conditions of the employees’ employment.” That is, he controlled the operations of the stores tightly and had ultimate responsibility for decisions that affected worker pay.

This is an important decision, at a time when CEOs make 204,000% more than the average worker. Being above the fray does not insulate someone from responsibilities. Those who manage companies must be held accountable not only to their shareholders, but also to those employees on whose shoulders they stand.

Supreme Court Rules that Pharmaceutical Sales Reps Not Entitled to Overtime

The Supreme Court ruled yesterday that pharmaceutical sales representatives are “outside sales” employees, and thus are not entitled to overtime. The Court ruled against the Department of Labor, which had submitted briefs in support of the plaintiff. The Court ruled that an employee need not actually “sell” things within the common meaning of the word – i.e., exchange money or a promise of – in order to be exempt from overtime regulations. Pharmaceutical representatives are generally paid to convince doctors to prescribe one brand name drug over the other – but the drug is actually bought and sold by patients at pharmacies. The Department of Labor argued that pharmaceutical representatives were not in fact “selling” anything outside the company, but were rather promoting certain drugs over others. The Court reasoned that Department of Labor had never brought an enforcement action against pharmaceutical companies in the past or issued formal interpretive guidelines, and therefore that it had “acquiesced” to the industries’ practices. While reasonable people may argue over the meaning of “sell”, the Court’s argument that the Department of Labor cannot reasonably believe a practice to be illegal if no previous enforcement actions have been brought, is troubling. The Department of Labor is only one agency, working to fight an ocean of wage and hour abuse and economic injustice, and is unlikely to be able to spot all potential abuses prior to private litigation. In fact, that’s what plaintiffs’ lawyers – like Beranbaum Menken – strive to do: enforce wage and hour regulations that both compensate employees for their work and also clarify the law. Nevertheless, we hope that the administration takes steps to remedy the situation. Pharmaceutical reps are employees like any other – they don’t work for themselves, and they don’t receive commissions. They deserve to be paid time-and-one-half for their overtime hours, just like other employees.