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New York Employment Law Blog

Does tipping culture force servers to put up with harassment?

AdobeStock_184919233.jpegThe #MeToo movement has made it to workplaces where a substantial portion of workers' wages are made up of tips. When servers and bartenders rely on tips to make a living wage, does it force them to put up with harassment or abuse by patrons? If it does, would decreasing their dependence on tips give them more power to resist?

The Associated Press recently reported an example of what restaurant servers feel forced to put up with. A customer made a comment that he was going to grab Nadine M.'s butt and she warned him not to try. He made her pay by "running me around as much as possible," she says. She felt she had to put up with it because she needed a tip.

Am I entitled to overtime as a salaried employee?


Even if you earn a salary, you may still be entitled to overtime!

Many people confuse the difference between a salaried employee and an employee who is exempt from overtime under the Fair Labor Standards Act (FLSA). Under the FLSA, any employee who is not specifically exempt under the FLSA or another federal law is eligible to receive at least time-and-a-half pay for all hours worked over 40 in a given week.

Are Uber, Lyft drivers really making less than the minimum wage?


Recently, a blockbuster story hit the headlines: an MIT study said that Uber and Lyft drivers were averaging, pretax, less than $3.37 per hour once vehicle expenses were taken into account. The study seemed to validate what many employment law experts had predicted -- when low-wage service workers are independent contractors, they not only lose many job-based legal protections but also wouldn't make enough to live on.

The lead researcher has now backed down somewhat from the $3.37 calculation after Uber criticized the story, pointing to errors in the study's methodology. Using an alternate method to calculate drivers' hourly wage, the average driver's earnings rose to $8.55 per hour pretax. A second alternate method calculated their earnings at $10 pretax. Ultimately, the researcher agreed that Uber's criticism was valid.

Poll: Which common work behaviors are most objectionable?

AdobeStock_39772782.jpegA scientifically valid poll by NPR and Ipsos recently delved into Americans' opinions about some common, potentially objectionable workplace behaviors. The pollsters found that the behaviors identified as most objectionable were still quite prevalent. It also found that men between 18 and 34 are much less likely to recognize the behaviors as improper.

It's important to note that the behaviors described are quite mild. The pollsters didn't ask about any behaviors that were criminal -- or even about the sorts of serious breaches that would likely result in a lawsuit or firing. Rather, most of the behaviors would probably constitute sexual harassment only if they were part of a serious and pervasive hostile work environment. Nevertheless, there are some interesting trends.

Are financial advisors entitled to overtime? Sometimes.


When people think about employees who are eligible for overtime pay, we typically picture hourly workers who perform blue-collar work and traditional "9-to-5" jobs. However, certain employees, some of whom are highly compensated and work in white-collar professions, may also be entitled to overtime pay. One example of these non-traditional overtime earners is the financial advisor or analyst.

Sexual orientation now a protected class under Title VII


On Monday, Feb. 26, the Court of Appeals for the 2nd Circuit in New York held that Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on sexual orientation.

It is a landmark ruling. While many states have enacted laws protecting LGBT workers, no federal law did so explicitly. This meant that in many places throughout the U.S., an employee could be terminated based solely on sexual orientation.

Collecting From Defunct Businesses

Collecting From Defunct Businesses.jpg

Creditors with judgments are often discouraged when they hear that the company that owes them money has gone out of business. Fortunately, the state legislature has passed laws restricting corporate debtors from engaging in certain transactions involving the company's owners and shareholders once a lawsuit has been filed against the company. If an "insider" at the company engages in such a transaction, it can open the door for creditors to hold the individual owners liable on the judgment entered against the corporate entity. In this post, we examine these provisions of the Debtor Creditor Law (the "DCL") that created the concept of constructive fraud to recover fraudulent conveyances.

DOL seeks rapid enforcement action against repeat wage offender


What would you do if your payroll checks bounced? Or if you were paid in cash, but less than you were owed? What if you complained about your wages, and your boss threatened you with a gun? Allegations like these can put your employer at risk of a major enforcement action, which can include an injunction against delivering its goods across state lines.

NY Attorney General: Weinstein Co. failed to protect women


If cinema mogul Harvey Weinstein thought he had seen the last of the sexual harassment and assault allegations against him, he was wrong. After dozens of women, including famous actresses, came forward with allegations of sexual misconduct and rape, Weinstein was forced out of his companies Miramax and The Weinstein Company, and expelled from the Motion Picture Academy.

Through his attorney, Weinstein has claimed that many of the allegations are without merit and went on to claim that he has been, overall, a positive force for women in the film industry.

Case Update: Dairy Drivers Settle Overtime Lawsuit

Here is an update on another case we've been following, which we originally wrote about nearly a year ago in a post entitled The power of punctuation: Commas, business contracts and the law. In March 2017, the First Circuit Court of Appeals ruled that a group of dairy drivers were non-exempt employees entitled to overtime pay based on the omission of an Oxford comma from the state's wage and hour statute. Last Thursday, the parties agreed to settle the case for $5 million, pending Court approval, and the Maine legislature has revised the statute to include semicolons, which will likely make these drivers exempt from overtime going forward.

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