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Long Island Employment Law Blog

Leading companies may be using social media to skirt labor laws

Online platforms like Facebook, Google and LinkedIn allow employers in New York and around the country to focus their help wanted advertising by using demographic filters. However, the results of a recent investigation conducted by the New York Times and ProPublica suggest that some of the nation's largest companies are using these features to skirt labor laws prohibiting age discrimination. The companies mentioned in the report include Goldman Sachs, Target, Amazon, Verizon and even Facebook itself.

The Age Discrimination in Employment Act, which was signed into law in 1967, prohibits employers from discriminating against job candidates for being age 40 or older. However, the investigation alleges that employers are using the tools offered by online recruitment platforms to make their available positions inaccessible to older candidates. When asked about the findings, a senior Facebook executive denied that using the social media platform to reach a particular audience was discriminatory and said that the practice was no different than advertising job vacancies in magazines read by certain demographic groups.

Worker in whistleblower case awarded $174,000

Workers in New York and around the country have an obligation to inform the proper authorities when they learn that their employers are engaging in dangerous, unethical or illegal activities. Whistleblowers in the workplace are protected from retaliation by laws, including the Occupational Safety and Health Act and the National Labor Relations Act, and employers can face severe penalties when they fire, harass or otherwise mistreat employees who step forward to report wrongdoing.

A recent case dealing with these issues involved a worker at a New York demolition company who raised concerns over the way that asbestos was being removed from a Jefferson County high school. A lawsuit filed on behalf of the worker by the Occupational Safety and Health Administration alleged that the company responded to his concerns by firing him and suing him for defamation, and these arguments were persuasive enough to convince a jury to award him $174,000 in damages. The award was made up of $103,000 in back wages, $50,000 in punitive damages and $20,000 in compensatory damages.

Governor wants to raise the minimum wage for tipped employees

Minimum cash wages for tipped employees are increasing on December 31, 2017, but Gov. Cuomo wants workers who get tipped to be paid the full minimum wage. He is expected to speak more on the issue on January 3, 2018 when he gives his State of the State address.

Cuomo’s review of the current wage system will also include input from workers and business. The Department of Labor will be holding public hearings to address the wage problem. Issues likely to come up are the pay disparity and gender and race bias towards tipped female workers of color.

Higher paid workers may be entitled to FSLA mandated overtime pay

The Fair Labor Standards Act requires employers in New York and around the country to pay their workers an overtime rate of at least one and a half times their regular hourly rate when they work more than 40 hours during a standard workweek. The landmark 1938 law does not apply to those who perform professional, administrative or executive duties. However, the FLSA's language does not make clear what is and what is not a white-collar job, and it has been left to the courts to make these decisions when workers file claims over unpaid overtime.

A recent case dealing with this matter involved two welding inspectors who filed an FSLA claim because they were denied overtime pay while working on a pipeline construction project in 2013 and 2014. Their employer, a Texas-based construction management company, claimed that the FLSA did not apply because the two workers performed white-collar jobs and earned over $100,000 per year. An Ohio district court judge was swayed by this argument and granted the company's motion to dismiss the case.

The factors in employee classification cases

The question of whether a particular worker is an employee or an independent contractor is an important one in courts in New York and around the country. In most states, the court will examine a number of factors to determine the status of the worker, with the primary factor being the level of control the business has over the details of the work performed.

A California case may be illustrative. The worker in that case was a taxi driver who signed a Taxicab Lease Agreement at the beginning of his relationship with the taxi company. The agreement disclaimed an employment relationship and gave the driver freedom with regard to how his job was performed. At the beginning of his shifts, the driver would check in and be assigned a taxi. At the end of the shift, he would return the vehicle and pay a gate fee. The gate fee did not vary based on the amount of money the driver made. He was free to accept or reject fares and to take breaks when he wanted to.

Gender discrimination in the workplace, by the numbers

The Pew Research Center recently released data on gender discrimination in the workplace. The release comes at an interesting time - a time when politicians and various members of the Hollywood elite are facing accusations of sexual harassment.

The findings pose a bit of a double edged sword for women in the workplace. On the one hand, if you are the victim of gender discrimination, you are not alone. On the other, it is disheartening to know that this form of discrimination continues to plague the workplace.

Workers cannot be required to repay draws on commission

The Fair Labor Standards Act provides certain protections to workers in New York, including the establishment of a minimum wage and overtime pay rules. Some salespeople who work on commission are paid draws on their future commissions in weeks in which they do not earn at least the minimum wage. These draws are then deducted from their commissions in subsequent weeks in which their pay exceeds the minimum wage. Recently, a federal court found that these types of pay arrangements do not violate the FLSA.

In a case that was heard by the U.S. Court of Appeals for the Sixth Circuit, retail salespeople who worked for an appliance company were compensated on a commission-only basis. The companies used a draw-on-commission scheme. When workers had weeks in which their commissions did not equal or exceed the minimum wage, they would receive draws against their future commissions to make up the difference. In weeks in which their pay exceeded the minimum wage, the company would be reimbursed.

The minimum wage is increasing again. Are you getting paid enough?

New York enacted a law that requires the minimum wage to increase every year until it reaches $15 an hour. The increase is triggered at the end of the calendar year.

With the annual increases, it is important to stay on top of your pay every year and make sure your employer is being held accountable to the requirement. In Long Island, the minimum wage will increase from $10 an hour to $11 an hour on December 31. The minimum wage is schedule to increase by $1 an hour until 2021, when it reaches $15.

Transgender woman awarded over $1 million in discrimination case

Long Island readers may hope that they never experience workplace gender discrimination. However, a lawsuit is sometimes necessary to ensure that a worker's rights are protected. For example, a transgender woman has recently been awarded $1.1 million after being denied promotion and tenure at Southeastern Oklahoma State University. The historic decision was handed down on Nov. 20.

According to court documents, the plaintiff was hired as a tenure-track assistant English professor in 2004 when she still presented as a male. In 2007, she began transitioning into a woman and told the university that she would attend work as a woman for the 2007-2008 school year. Shortly afterward, she was notified by the human resources department that a university vice president had said her transition countered his religious beliefs. The vice president's sister also told her that her brother took "grave" offense to her gender identity and advised her to take safety precautions.

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