Wage & Hour Law

Independent Sales Representatives May Be Entitled to Quadruple Damages

April 27, 2016 | by Jonathan I. Nirenberg

A less-known New Jersey statute provides protection to independent commissioned salespeople after their contracts terminate. That law, the New Jersey Sales Representatives’ Rights Act, entitles independent contractors who work as sales representatives to be paid all commissions and any other compensation they earned within 30 days after their contracts terminated or 30 days after their commissions were due, whichever is later. This requirement applies irrespective of the reason why the contract terminated, including if the sales representative resigned, was terminated without cause, or was terminated with cause.

The statute, which originally was passed in 1990, defines a “sales representative” to be “an independent sales company or other person” who is compensated at least in part by commissions. It makes it clear its protection applies only to independent contractors, and does not apply to employees.

The statute further indicates that sales representatives also are entitled to receive commissions on goods that were ordered on or before the last day of the salesperson’s contract, even if the principal (meaning the business or individual who they worked for) did not accept, receive or pay for the goods until after the salesperson’s contract terminated. The principal must pay the salesperson for any such post-termination commissions within 30 days after the payment would have been due under the contract if it had remained in effect.

Court Approval Needed to Dismiss Overtime Lawsuit

August 24, 2015 | by Jonathan I. Nirenberg

The Second Circuit Court of Appeals recently ruled that the parties to a lawsuit cannot agree to dismiss a case under the Fair Labor Standards Act (“FLSA”) as part of a settlement unless they have the approval of a Judge or the United States Department of Labor (“DOL”). The FLSA is a federal wage and hour law which establishes minimum wage and overtime requires.

Dorian Cheeks worked as a server for Freeport Pancake House, Inc. and W.P.S. Industries, Inc. He filed a lawsuit in the Eastern District of New York against both companies in which he asserted claims under the FLSA and New York Labor Law. He is seeking unpaid overtime pay and liquidated (double) damages, as well as attorneys’ fees. He also alleges that the Pancake House demoted him and eventually fired him because he objected about the company’s failure to properly pay overtime to him and its other employees, and is seeking damages for his past and future lost wages.

Mr. Cheeks and the Pancake House eventually agreed to settle the case. Accordingly, they filed a stipulation with the court seeking to have the case dismissed with prejudice. However, the court refused to dismiss the case. Instead, it directed the parties to file a copy of their settlement agreement as part of the public record, and to explain why they believe the settlement is “fair and reasonable.” The Court did so because the FLSA prohibits employees from waiving their rights under it unless their settlement agreement either was supervised by the DOL or approved by a court.

New York Raising Minimum Wage for Fast Food Workers

July 23, 2015 | by Jonathan I. Nirenberg

Yesterday afternoon, New York States’ Fast Food Wage Board approved a set of three resolutions that recommend raising the minimum wage for employees who work for fast food chains to $15 per hour. This would be $6.25 more than New York’s current $8.75 minimum wage.

The Fast Food Wage Board was formed the past May, at the request of Governor Andrew M. Cuomo, to review wages in the fast-food industry.

Under the three resolutions, covered “Fast Food Establishments” include any business in New York State that serves food and drink (1) at which customers order and pay before they eat; (2) which provides “limited service,” which presumably means they offer limited or no table service; and (3) which are part of a chain that has at least 30 locations throughout the United States.

Ruling Makes it Harder for Unpaid Interns to Bring Wage & Hour Claims

July 9, 2015 | by Jonathan I. Nirenberg

A recent decision by the Second Circuit Court of Appeals makes it more difficult for unpaid interns to successfully bring overtime and minimum wage claims under the Fair Labor Standards Act (“FLSA”) and New York State’s wage and hour law. The FLSA is a federal law that requires employers to pay certain employees at least the minimum wage, and time-and-a-half when they work more than 40 hours per week. The Second Circuit handles appeals from federal courts in New York, Connecticut and Vermont.

The case was filed by Eric Glatt, Alexander Footman, Eden Antalik. Mr. Glatt and Mr. Footman worked for Fox Searchlight Pictures, Inc. in connection with the movie Black Swan, and Ms. Antalik worked for the company in another capacity. Their job duties varied, but included things like copying and scanning documents, taking lunch orders, making deliveries, hotel reservations and catering arrangements, and taking out the trash. They worked between 30 and 50 hours per week. Fox classified all three as interns and did not pay them at all. They sued, claiming Fox failed to pay them minimum wage and overtime in violation of the FLSA and New York State law.

The United States Department of Labor (“DOL”) has a longstanding guidance which sets a very high requirement before a company can treat someone as an unpaid intern without violating the FLSA. Under it, an employer must pay an intern unless all six of the following conditions are met:

FLSA Prohibits Retaliation Based on Internal Complaints

May 7, 2015 | by Jonathan I. Nirenberg

The Second Circuit Court of Appeals recently held that the Fair Labor Standards Act (“FLSA”) prohibits employers from retaliating against employees who complain to their employer’s about a violation of the FLSA. The FLSA is a federal wage and hour law that, among other things, establishes minimum wage and overtime requirements. The Second Circuit handles federal appeals out of several states, including New York.

The case, Greathouse v. JHS Security Inc., reversed a 1993 Second Circuit ruling to the contrary. Specifically, in Lambert v. Genesee Hospital the Second Circuit concluded that because the FLSA’s anti-retaliation provision prohibits employers from retaliating against employees who “filed” a complaint, it applies only protects employees who filed a written complaint with a government agency. The opinion in Greathouse expressly overrules Lambert.

Darnell Greathouse worked as a security guard for JHS Security. He made numerous oral complaints to his boss, Melvin Wilcox, because the company was late paying him and took illegal deductions from his salary. For example, in October 2011 Mr. Greathouse complained to Mr. Wilcox because the company had not paid him in several months. In response, Mr. Wilcox told him: “I’ll pay you when I feel like it.” Mr. Wilcox then pulled out a gun and pointed it toward Mr. Greathouse. Mr. Greathouse took this to mean he was fired.

Growing Number of New Jersey Municipalities Require Paid Sick Leave

January 20, 2015 | by Jonathan I. Nirenberg

Beginning this month, East Orange, Irvington, Passaic and Paterson will join Newark and Jersey City in requiring employers to provide their workforce with paid sick leave. Montclair and Trenton will begin requiring covered employers to provide paid sick leave in March. The ordinances governing sick pay in these municipalities largely mirror Newark’s law that went into effect last year.

The ordinances governing sick leave are nearly identical. Eligible employees include those who work for at least 80 hours per year for an employer of 10 or more employees. Covered employers are required to provide employees with 40 hours of paid sick leave each calendar year. If an employer has fewer than 10 employees, it is required to provide 24 hours of paid sick time each calendar year. Employers of child care, home health care and food service workers, however, are required to provide 40 hours of paid sick leave even if such employers have less than 10 employees. Government employees, employees of New Jersey schools and members of construction unions are not covered by the various ordinances.

In determining the number of employees for coverage, full time, part-time and temporary employees must be counted. Paid sick time is accrued one hour of sick time for every 30 hours actually worked, and employees can begin to use the paid sick time once they reach 90 days of employment. Unused paid sick leave that is not otherwise paid out to employees can be carried over to the following calendar year, but employees may only use 40 hours of paid sick time per year. Also, employees are not entitled to reimbursement of unused paid sick time upon the termination of employment.

Employees Not Entitled to Be Paid for Time Waiting for Mandatory Security Screening

December 19, 2014 | by Jonathan I. Nirenberg

The United States Supreme Court recently ruled that an employer is not required to pay its employees for the time they have to wait to go through security screening even though the employer requires the screening.

The employer, Integrity Staffing Solutions, Inc., provides warehouse employees to Amazon.com throughout the country. Its employees package products and ship them on behalf of Amazon. Integrity required the warehouse workers to pass through metal detectors at the end of each day before they could leave the warehouse.

Two employees, Jesse Busk and Laurie Castro, filed a class action wage and hour lawsuit against Integrity. They claimed Integrity violated the Fair Labor Standards Act (“FLSA”), a federal law, because it did not pay them for the time they had to wait to pass through metal detectors at the end of every day. The employees estimated they had to wait an average of 25 minutes per day, or nearly to 2 1/2 hours per week.

FLSA Prohibits Retaliation Against Employee Who Complained About Violation of State Wage and Hour Law

July 17, 2014 | by Jonathan I. Nirenberg

Last month, a judge in the United States District Court for the District of New Jersey ruled that an employee who files a wage and hour claim with the New Jersey Department of Labor (“NJDOL”) can be protected from retaliation under the Fair Labor Standards Act (“FLSA”) even if her original claim did not assert that her employer violated the FLSA.

Veronica Reilly worked for Quick Care Medical, P.C., as an office manager. She filed a claim seeking to recover unpaid vacation time and overtime pay with the NJDOL. Specifically, she claimed the company failed to pay her $673.20 to which she was entitled when she used a week of her accrued vacation time. She also claimed she was improperly denied $168.40 in overtime pay. She brought her claims under two state laws, the New Jersey Wage Collection Statute and the Wage Payment Law Statute. Ms. Reilly won both of her claims, and the NJDOL ordered Quick Care to pay the full $841.60 she sought in vacation and overtime pay.

According to Ms. Reilly, when she returned to work on the day of her hearing at the NJDOL, her boss, Dr. Neerja Misra, reprimanded her for failing to tell the company she was going to be late for work that day. Dr. Misra apparently told Ms. Reilly not to come to work for the next three days, and then fired Ms. Reilly when she returned to work on the fourth day after her hearing.

Third Circuit Finds Individual Owners and Successor Company Can Be Liable for Overtime Violations

April 16, 2014 | by Jonathan I. Nirenberg

The Third Circuit Court of Appeals recently reinstated an employee’s class action overtime pay lawsuit under Fair Labor Standards Act (FLSA) and the New Jersey Wage and Hour Law (NJWHL). In doing so it recognized successor companies can be liable for their predecessors’ overtime violations, and individual owners and supervisors can be held personally liable under both of those laws.

Patricia Thompson was hired by Security Atlantic Mortgage Company as a mortgage underwriter in June 2009. Security Atlantic quickly assigned her to provide training at a related company, Real Estate Mortgage Network (REMN). In February 2010, Security Atlantic stopped doing business and Ms. Thompson began working directly for REMN. Otherwise, her job and the business remained essentially the same.

Ms. Thompson claims Security Atlantic and REMN both failed to pay her and other mortgage underwriters time-and-a-half when they worked more than 40 hours per week, in violation of both the FLSA and the NJWHL. Specifically, she alleges mortgage underwriters worked through lunch and at home to complete their assignments on time, but were not paid overtime because the companies misclassified them as exempt employees.

Newark New Jersey Passes Paid Sick Leave Law

March 11, 2014 | by Jonathan I. Nirenberg

The City of Newark recently enacted an ordinance requiring certain employers to provide paid sick leave to their employees. Newark is now the second city in New Jersey to pass a paid sick leave law. As discussed in a previous article, effective January 24, 2014, Jersey City Law Requires Employers to Provide Paid Sick Leave.

To Whom Does the Law Apply?

The Ordinance applies to most employees who work in Newark for at least 80 hours per year. However, it does not apply to the federal, state or local government, or to employees of any school district or Board of Education, including Rutgers University.