Over the past two years, we could see many stories of restaurant and hospitality workers uniting in their demand for higher wages and better working conditions. However, wage theft and other labor law violations are not limited to the food and hospitality industries. All types of employees, from waiters to administrators and other professionals, can become victims of labor law violations by their employers.
Often, employees don’t even realize that they are being deprived of thousands of dollars in wages to which they are entitled under the New York State and New York City laws. Claims of wage theft and other labor law violations keep increasing despite the effort of state and federal agencies to recover billions in unpaid wages. The problem lies in the fact that most cases of labor law violations go unreported. Nevertheless, employees who are denied minimum wage and overtime pay or who have suffered any other type of labor law violation should know that they can be compensated by reporting these violations.
The NY Labor Law is a comprehensive set of laws and regulations that serve to protect workers in New York state. These laws define the minimum wage and overtime pay, employment practices, holiday leave, sick leave, paid leave, and many other aspects. They also make sure that employers are complying with the law. The New York Labor Law expands on the Fair Labor Standards Act (FLSA), the federal labor law which requires employers to pay the federal minimum wage and ‘time and a half’ overtime pay for employees who work more than standard 40 hours a week. As said, if employers fail to meet these requirements or violate any other labor law, employees have the right to report them and get compensation.
Common Labor Law Violations in New York
The three most frequent labor law violations in New York are:
- Minimum Wage Laws Violations;
- Misclassifying Employees; and
- Overtime Law Violations.
1. Minimum Wage Laws Violations
Arguably one of the most common violations of the New York Labor Laws is failing to pay employees their minimum wage. The current minimum wage for workers in New York City is $15.00 per hour. Starting on December 31, 2021, the minimum wage for Nassau, Suffolk, and Westchester County employees is also $15 per hour. For employees in the rest of the state, the minimum wage has increased to $13.20 per hour.
The minimum wages can differ if an employee works in the fast-food industry or is the type who regularly receives tips. But, if an employee is paid less than the minimum, an employer is required to increase their hourly rate of pay or pay back what they owe in unpaid wages.
2. Misclassifying Employees
Independent contractors (freelancers) and employees are not the same things. If an employer hires an employee by signing an employment contract, they are obliged to pay benefits and other compensation to the employee. However, sometimes employers classify employees as freelancers when they are actually employees. This misclassification is often done on purpose so employers can avoid paying overtime compensation and other benefits, therefore violating the New York labor law. Another type of misclassification happens when an employer classifies an employee as salaried when they are actually paid by the hour. This is a common violation that allows employers to avoid paying overtime work.
3. Overtime Law Violations
Another frequently seen violation is when an employer treats their employee as exempt from overtime when they are not. However, only employees with certain job duties, such as those in administrative or executive positions, can be exempt from overtime compensation. If an employee is not exempt according to the FLSA, they have the right to be paid for their overtime work. In New York, the overtime wage is 1.5 times the regular pay rate for every hour worked overtime.
In addition to this, employers may cheat employees out of other forms of compensation, such as:
- Refusing to pay promised bonuses;
- Refusing to pay holiday or vacation time;
- Not paying the employee for all hours worked, including on-the-job training;
- Reducing hourly rate without prior notice;
- Withholding tips; and
- Paycheck bounced because of the employer not having sufficient funds in their bank account.
How to Report Labor Law Violation in New York?
If an employer is found guilty of violating any section of the New York Labor Law, this is treated as a misdemeanor. New York Labor Law violations can lead to monetary damages or imprisonment, or both.
Suppose an employee is owed money and the employer is found liable for wage theft. In that case, they will have to pay back those wages as well as liquidated damages as additional compensation. The same applies to withholding tips or any other labor law violation.
So, how can I file a complaint? A complaint may be filed by mail or in person at an office of the Wage and Hour Division (WHD) of the New York State Department of Labor. In the complaint, an employee must include the following information:
- The worker’s personal information, including name, address, and telephone number;
- The worker’s name, address, telephone number, and type of business;
- The job title and description of work done;
- Payment information, including how much the worker is paid, the method of payment, and how often wages are paid;
- A description of the alleged violations; and
- Dates of the violations.
After a complaint of violation is filed, the Wage and Hour Division will review it and conduct an investigation. The Wage and Hour Division will contact the complainant if any additional information is needed for them to pursue this allegation.
The identities of employees who file complaints are always kept confidential so that the employer cannot fire or discriminate against an employee who participates in legal proceedings under the Fair Labors Standard Act. Third parties can also file complaints on behalf of an employee who has suffered a labor law violation.
An employee may also report the employer for retaliation if the employer: cuts their working hours, reschedules them for less desired hours, reassigns them to a less desirable location, demotes or transfers them, puts any disciplinary action, puts them under more critical supervision, or anything similar because they filed a complaint to the Department of Labor.
The New York State provides a complaint process for employees who want to report a labor law violation because they can’t get their employer to compensate them for their hard work. The process requires filling out some paperwork and submitting documentation. Although the most common violations are unpaid minimum wages and overtime pay violations, there are hundreds more that employers may be guilty of. If you think you’ve witnessed or suffered from violating the labor law, we strongly advise you to file a complaint.
To find out whether you have a case worth pursuing, feel free to contact Cilenti & Cooper today. We treat every case with the attention and care it deserves and can fight for your rights from beginning to end. We offer a free consultation to all of our prospective clients, so you have nothing to lose.