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.
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.
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.