Gender discrimination, hostile workplaces, and pay issues.

Women continue to be paid less than men even in New York.

Women are not the only victims of hostile workplaces. Employees in one or more protected classes of employees can be affected.

Women are often victims of unequal pay. Quid pro quo sexual harassment occurs at times. Misclassifying employees as salaried and exempt from overtime pay is not limited to women or men and overtime pay may be denied to both.

Wage theft happens across genders. Unpaid overtime is a serious problem across New York and the entire United States. These cases make up a large part of federal district court dockets. The Fair Labor Standards Act gives courts jurisdiction over wage and hour claims.

Women and men can benefit from early resolution either pre-litigation or shortly after filing suit in federal court. You do not have to file as a class action, called a collective action, to benefit.

These cases are time consuming and can be expensive to litigate. Litigation may involve massive discovery, motions, requests for admissions, interrogatories, potential experts and disputes over the most important evidence.

Most important evidence for an unpaid overtime case:

  • Documents
  • Documents
  • Documents

Documents are key for all types of employment law cases. But for gender discrimination and pay issues they are critical. Federal courts know this. They force parties to exchange initial documents early in these cases. Defendants select key documents as do the plaintiffs. Once the parties dig in, disputes over document production can be fierce. Wage and hour claims are the ultimate “documents” cases although all gender discrimination claims can include such disputes.

Employee pay disparity for women continues. This video explains why:

Video transcript:

I’m Jonas Urba, a New York employment lawyer here with Employment Law Reality Check. Can you talk about salary at work? Sure you can. If your employer takes some type of action against you because you discussed salary you should call some employment lawyers. Because there’s nothing wrong with talking about your salary. In fact studies have shown that employees who discuss salary with one another are actually paid more fairly. So don’t take it upon yourself. Call some employment lawyers. Discuss the issues with us. You can call me. I’m Jonas Urba. I serve the entire state of New York and I can be reached at (212) 731-4776. Attorney Advertising.

More mistakes employers make with pay:

  1. Changing an established regular workweek
  2. Split shift or spread of hours violations
  3. Requiring attendance during unpaid meal-break meetings
  4. Paying salaries to employees who lack hire-fire or policy deviation authority

1. Changing an established regular workweek:

Many employers pay bi-weekly or weekly. They inform employees that payday will occur every other Friday. Or maybe every Friday. That’s ok and it makes keeping track of hours easier. It’s also much closer in time to employees’ worked days. Employees are more likely to notify payroll of unpaid wages. Some employers even require signatures on timecards, electronic or otherwise. Employees verify that the timecard reflects all worked hours.

However, when employees are not easily able to calculate their owed wages, problems arise. An employer who pays monthly is most suspect. These employers sometimes fail to inform employees of the employer’s regular workweek. One month’s payday might occur on a Tuesday and the following month’s on a Friday. Unless timecards reflect when weeks start or conclude, this method of pay is suspect from the start. Employment lawyers are likely to dig deeper to uncover why the employer has chosen a confusing pay period.

Employers who attempt to substitute bonus pay for unpaid overtime are also suspect. Bonuses are, by definition, discretionary. Overtime pay is mandatory. Paying an employee discretionary pay when mandatory pay is due further confuses employees. These employers appear deceitful even before they attempt to defend themselves in federal court.

2. Split shift or spread-of-hours violations:

New York requires that employees whose shifts span more than 10 hours be paid for an extra hour of time at minimum wage. In January 2021 the hourly minimum wage across New York State is $12.50, Westchester County’s minimal hourly pay is $14.00, and New York City mandates a minimum of $15.00 per hour. These rates often change on December 31 of calendar years.

In order to avoid these penalties some employers prohibit employees from leaving their premises during meal periods. This practice can lead to employees performing labor during their meal breaks which must be uninterrupted. Employers who permit work during meal  periods are subject to unpaid wages or unpaid overtime claims.

3. Requiring attendance during unpaid meal-break meetings:

For employees entitled to a 30-minute, uninterrupted meal break, work is prohibited during such times. In smaller offices, owners sometimes hold employee team-building or office staff meetings during lunch. These employers might buy lunch for everyone and believe that the cost or value of the lunch exceeds the hourly rates earned by their employees. That is irrelevant.

The practice of buying lunch for employees might be similar to giving employees year-end bonuses. The meal, as in the bonus, is completely discretionary and does not substitute for wages. Employers are prohibited from bartering personal property for wages as well. If an employee’s meal period is interrupted with work activity, such as answering a phone call, the employer must pay that employee for their meal period time.

 4. Paying salaries to employees who lack hire-fire or policy deviation authority:

These claims tend to be the most challenging. Although most salaried employees are exempt, there are plenty of situations where they may not be exempt from overtime.

Last year, in 2020, the federal DOL amended the regulations which exempt salaried employees. New York State has not followed suit. It is unlikely that federal courts will follow the revised exemption definitions as well. Doing so would effectively make the exemptions meaningless as follows:

  • Administrative Exemption. Under state law an employee’s primary duties are the performance of office or non-manual field work directly related to management policies or general operations. Under recently revised federal regulations “policies” have been removed. These employees do not have to “customarily and regularly” exercise discretion and independent judgment. The exemption has no meaning since almost any salaried employee could arguably be exempt and earn below the minimum wage.
  • Executive Exemption. Under state law an employee must supervise two or more other employees, must have the authority to hire or fire other employees, and must customarily and regularly exercise discretionary powers. Under recently revised federal DOL regulations “authority” and “customarily and regularly” are removed. The exemption has no meaning since almost any salaried employee could arguably be exempt and earn below the minimum wage.
  • Professional Exemption. Under state law professional employees have advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study. It is distinguished from a general academic education, apprenticeship, or training in the performance of routine, mental, manual or physical processes. Under revised regulations the terms “general academic education, apprenticeship, or training” are removed. Adding “creative professionals” to the professional exemption demeans the exemption, arguably making any “creative” person a professional, exempt, and below minimum wage earnings acceptable.

Close to 60 YouTube videos have been posted by Urba Law PLLC at Employment Law Reality Check, linked here:

Call New York employment lawyer V. Jonas Urba at (212) 731-4776

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