The Firm's Labor and Employment Practice Group represents clients in federal and state court litigations and administrative proceedings in matters involving minimum wage, overtime compensation, prevailing wage, unemployment insurance benefits, commissions, bonuses, severance pay, vacation pay, fringe benefits and other compensation issues. In addition, the Group represents clients in arbitrations involving claims arising under collective bargaining agreements and individual employment contracts. More specifically, the Group advises clients in the following wage and hour areas:

Minimum Wage

The required minimum wage rate is currently $7.25 per hour under federal law, and under New York law (effective December 31, 2016) ranges from $9.70 to $11.00 per hour depending on the location of the employee’s work site and the size of NYC employers. Workers employed in the hospitality and certain other industries may have this minimum wage rate offset by tip credits if they are employed as non-exempt service and non-service employees by restaurants, hotels and other covered employers.

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Overtime

Non-exempt employees are entitled to receive overtime pay for hours worked in excess of 40 in a workweek at a rate not less than 1-1/2 times their regular rate of pay. Overtime pay is not, however, required by law for work performed on weekends, holidays, or regular days of rest unless the employee's workweek exceeds 40 hours.

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Hours Worked

Employers must ensure that their employees’ working hours are properly recorded each day in every working week. Hours worked may include travel time, rest and meal breaks, on-call time, waiting time, "donning and doffing" time, and sleeping time. Employees also may be credited with working time where they are required to use cell phones, smart phones, laptops or other communication devices while away from their employer's premises.

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Wage Deductions

Wage deductions are not permitted under New York law without an employee's prior written consent. Permitted wage deductions are generally limited to insurance premiums, health and welfare benefits, charitable contributions, union dues or fees, and similar payments for the benefit of the employee. An employer may not deduct from an employee's paycheck any costs related to breakage, spoilage, cash shortages, loan repayments or similar alleged damages.

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Exempt Employees

Employees may be exempt from minimum wage and/or overtime compensation requirements if they are properly classified as executives, professionals, administrative employees, certain computer employees, outside sales representatives, and highly compensated employees, among others. Exemptions are typically applied on an individual workweek basis, and are narrowly construed against the employer asserting them.

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Independent Contractors

The misclassification of employees as "independent contractors" may result in overtime and employment tax liabilities for employers under both federal and state law. Employees are not an independent contractor if they perform services that can be controlled by an employer (i.e., what will be done and how it will be done). If an employer has the legal right to control the details of how services are performed, an employment relationship may exist.

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Wage Theft Prevention Act

The New York Wage Theft Prevention Act (WTPA) requires that employers provide employees hired on or after April 9, 2011 with a written acknowledgment concerning their rates of pay, wage allowances, pay dates, and related matters. Employers need to ensure that they are in full compliance with the new wage and hour notice requirements of Section 195(1) of the New York Labor Law in order to avoid the imposition of the expanded civil and/or criminal penalties.

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Paid Leave

Employers may establish the rights of their employees to receive paid vacation time, sick days, holidays and personal days by either a written policy or established past practice. Effective January 1, 2018, N.Y.S.’s paid family leave program will begin to provide employees with wage replacement for certain designated reasons other than the employee’s own serious health condition. N.Y.C. also has a paid leave law for employees.

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Hospitality Industry

New York law provides wage and hour protection to service and non-service employees employed in the restaurant, hotel and resort industries. Tip credit and tip pooling protection is provided to wait staff, counter personnel who serve food or beverages to customers, bus persons, bartenders, barbacks, food runners, captains who provide direct food service to customers, and hosts who greet and seat guests.

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