Workplace Understanding Key Differences Between The Fair Labor Standards Act and New York Labor Law 2013 BOND, SCHOENECK & KING, PLLC

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1 Workplace 2013 Understanding Key Differences Between The Fair Labor Standards Act and New York Labor Law 2013 BOND, SCHOENECK & KING, PLLC

2 TABLE OF CONTENTS Page I. COVERAGE... 1 A. Fair Labor Standards Act ( FLSA )... 1 B. New York Labor Law ( NYLL )... 7 II. STATUTE OF LIMITATIONS A. Fair Labor Standards Act B. NY Labor Law C. Practical Considerations III. LIQUIDATED DAMAGES A. FLSA B. NY Labor Law C. Practical Considerations IV. SETTLEMENT AGREEMENTS A. FLSA B. NY Labor Law C. Certain NY Labor Law provisions may be waived, others cannot D. Practical Considerations V. OVERTIME THRESHOLDS A. FLSA B. NY Labor Law VI. EXEMPTIONS A. Types of Exemptions B. Salary Level C. Salary Basis D. Executive and Administrative Exemption Duties Test E. Professional Exemption Duties Test F. Computer Employee Exemption Duties Test G. Outside Sales Exemption Duties Test H. Highly Compensated Employees Exemption Duties Test I. New York s Miscellaneous Wage Order Bond, Schoeneck & King, PLLC i

3 VII. INTERNS A. FLSA Test B. NY Labor Law Test VIII. INDEPENDENT CONTRACTORS A. FLSA Test in Second Circuit Economic Realities Test B. NY Labor Law Right to Control IX. RECORDKEEPING A. FLSA B. New York - Wage Theft Prevention Summary C. Recommendation X. IMPORTANT MISCELLANEOUS NY LABOR LAW ISSUES NOT ADDRESSED BY THE FLSA A. Amended NYLL 193 (Wage Deductions) B. Frequency of Pay C. Spread of Hours / Call-In Pay Application depends on which wage order applies Bond, Schoeneck & King, PLLC ii

4 UNDERSTANDING KEY DIFFERENCES BETWEEN THE FAIR LABOR STANDARDS ACT AND NEW YORK LABOR LAW I. COVERAGE A. Fair Labor Standards Act ( FLSA ) 1. Enterprise Coverage a. Employees who work for certain enterprises (businesses or organizations) are covered by the FLSA. All employees of an enterprise, as defined by the FLSA, are covered, regardless of the duties they perform. (1) If a worker is not an employee of one of these enterprises, he or she may still be covered if the employee s own duties meet certain interstate commerce requirements. b. Enterprise means the related activities performed (either through unified operation or common control) by any person(s) for a common business purpose, and includes all such activities whether performed in one or more establishments or by one or more corporate or other organizational units including departments of an establishment operated through leasing arrangements, but shall not include the related activities performed for such enterprise by an independent contractor. c. Enterprises covered by the FLSA include: (1) Companies/organizations with at least 2 employees and with an annual dollar volume of sales or receipts in the amount of $500,000 or more and that are engaged in interstate commerce or the production of goods for commerce. (2) Federal, state, or local government agencies. (3) Hospitals, or institutions primarily engaged in the care of the sick, the aged, or the mentally ill or disabled people who live on the premises (it does not matter if the hospital or institution is public or private or is operated for profit or notfor-profit). (4) Pre-schools; elementary or secondary schools or institutions of higher learning (e.g., college); or schools for mentally or physically handicapped or gifted children (it does not matter if the school or institution is public or private or operated for profit or not-for-profit) Bond, Schoeneck & King, PLLC

5 2. Individual Coverage (Commerce) a. Even when there is no enterprise coverage, employees are protected by the FLSA if: (1) Their work regularly involves them in commerce between States ( interstate commerce ). (a) Commerce is defined as trade, commerce, transportation, transmission, or communication among the several states, or between any state and any place outside thereof. (b) (c) (d) (e) Individual employee coverage is based on the nature of the particular employee s work activities, and not on the business as a whole. To determine if an employee is engaged in interstate commerce, the test is whether the employee s activities are actually in or so closely related to the movement of the commerce as to be a part of it. Involved in interstate commerce is interpreted very broadly. An employee is typically involved in interstate commerce when they perform: (i) (ii) work related to the actual movement of commerce; work that regularly uses the channels of interstate commerce; or (iii) work related to the instrumentalities of commerce. (f) Examples of employees who are involved in interstate commerce include those who: (i) (ii) (iii) work in communications or transportation; regularly use the mails, telephones, or telegraph for interstate communication, or keep records of interstate transactions; handle, ship, or receive goods moving in interstate commerce; 2013 Bond, Schoeneck & King, PLLC

6 (iv) (v) (vi) (vii) (viii) (ix) regularly cross State lines in the course of employment; or work for independent employers who contract to do clerical, custodial, maintenance, or other work for firms engaged in interstate commerce or in the production of goods for interstate commerce. produce goods (such as a worker assembling components in a factory or a secretary typing letters in an office) that will be sent out of state; regularly make telephone calls to persons located in other States; handle records of interstate transactions; travel to other States on their jobs; and do janitorial work in buildings where goods are produced for shipment outside the State. (2) They are engaged in... the production of goods for commerce. (a) (b) An employee is engaged in the production of goods if that employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any closely related process or occupation directly essential to the production thereof, in any State. Goods are defined as goods (including ships and marine equipment), wares, products, commodities, merchandise, or articles or subjects of commerce of any character, or any part or ingredient thereof, but does not include goods after their delivery into the actual physical possession of the ultimate consumer thereof other than a producer, manufacturer, or processor thereof. b. Domestic service workers such as day workers, housekeepers, chauffeurs, cooks, or full-time babysitters are covered if: (1) their cash wages from one employer in calendar year 2010 are at least $1,700 (this calendar year threshold is adjusted by the Social Security Administration each year); or 2013 Bond, Schoeneck & King, PLLC

7 (2) they work a total of more than 8 hours a week for one or more employers. 3. Application to non-profits a. The FLSA does not provide an exclusion for private, non-profit organizations. (1) These organizations are covered if they are engaged in interstate commerce or in the production of goods or materials for interstate commerce. (2) However, enterprise coverage does not apply to a private, non-profit enterprise where the eleemosynary, religious or educational activities of the non-profit enterprise are not in substantial competition with other businesses, unless it is operated in conjunction with a hospital, a residential care facility, a school or a commercial enterprise operated for a business purpose. (3) The key inquiry is whether the non-profit organization operates with a business purpose. b. Volunteers (1) The FLSA defines employment broadly ( to suffer or permit to work ), but the Supreme Court has said the FLSA was not intended to stamp all persons as employees who, without any express or implied compensation agreement, might work for their own advantage on the premises of another. Walling v. Portland Terminal Co., 330 U.S. 148 (1947). (2) Volunteers are not covered by the FLSA. (3) Volunteers are defined as individuals who volunteer or donate their services, usually on a part-time basis, for public service, religious, or humanitarian objectives, not as employees and without contemplation of pay. (a) (b) (c) An individual cannot be deemed a volunteer when providing services to private, for-profit employers. A volunteer can, however, be paid expenses or a nominal fee, such as a stipend, to perform services. Volunteers are not considered employees of the religious, charitable or similar non-profit organizations that receive their service Bond, Schoeneck & King, PLLC

8 (d) (e) Individuals are considered to be volunteers only where their services are offered freely and without pressure or coercion, direct or implied, from an employer. An individual is not considered to be a volunteer if the individual is otherwise employed by the same public agency to perform the same type of services as those for which the individual proposes to volunteer. (i) The FLSA does not apply to volunteers taking part in the following activities: a) members of civic organizations may help out in a sheltered workshop; b) men s or women s organizations may send members or students into hospitals or nursing homes to provide certain personal services for the sick or elderly; c) parents may assist in a school library or cafeteria as a public duty to maintain effective services for their children or they may volunteer to drive a school bus to carry a football team or school band on a trip; d) an individual may volunteer to perform such tasks as driving vehicles or folding bandages for the Red Cross, working with disabled children or disadvantaged youth, helping in youth programs as camp counselors, scoutmasters, den mothers, providing child care assistance for needy working mothers, soliciting contributions or participating in benefit programs for such organizations and volunteering other services needed to carry out their charitable, educational, or religious programs; e) an individual may also volunteer at a food bank; provide personal services to the sick or elderly in a hospital or nursing homes; provide services to a school library or cafeteria; drive a school 2013 Bond, Schoeneck & King, PLLC

9 bus for a football team or band trip; work as firefighters or auxiliary police; work with certain disabled or disadvantaged youths; help with youth-based programs as camp counselors; or solicit contributions or participating in civic or charitable benefit programs or educational programs. (ii) In its opinion letters, the DOL has specifically confirmed that the following are examples of volunteer activities: a) Youth services club employees chaperoning cultural and sporting field trips or bingo games outside working hours; b) Volunteer work in a Habitat for Humanity sponsored by but not required by employer; c) School staff members volunteering as athletic coaches who received small stipends; d) Peer reviewers who performed accreditation evaluations for membership-based religious organizations; e) University employees volunteering at an annual run hosted by University (unless duties were similar to regular work duties). (f) Tony & Susan Alamo Found. v. Sec y of Labor, 471 U.S. 290 (1985) The Secretary of Labor sued a nonprofit religious institution that operated commercial businesses staffed by associates, most of whom were former drug addicts, derelicts, or criminals who were undergoing rehabilitation by institution. Associates denied that they were employees and claimed to be volunteers. The Supreme Court, applying the economic realities test, affirmed a finding of employment 2013 Bond, Schoeneck & King, PLLC

10 status noting that associates were entirely dependent on the organization for long periods of time and must have expected to receive benefits in exchange for their services. 4. Public Sector a. State and local government employers are public agencies under the FLSA. (1) A public agency is defined as: (a) (b) (c) (d) the Government of the United States; the government of a State or political subdivision thereof; any agency of the United States, a State, or a political subdivision of a State; or any interstate governmental agency. (2) The definition of public agency does not include private companies that are engaged in work activities normally performed by public employees. b. All public agency employees of a State, a political subdivision of a State, or an interstate government agency are covered by the FLSA under the theory of enterprise coverage. c. No Annual Dollar Volume ( ADV ) test must be met for such an employer to be covered by the FLSA. B. New York Labor Law ( NYLL ) 1. The NYLL applies to all private sector employers, without exception. However, various wage orders may apply: a. Hospitality Wage Order (1) Covers employees in both the Hotel and Restaurant Industries; (2) Simplifies and increases the minimum wage requirements for tipped employees; (3) Requires extra payments under specified circumstances, such as call-in pay, spread of hours pay, and uniform maintenance pay; 2013 Bond, Schoeneck & King, PLLC

11 (4) Exempts wash-and-wear uniforms from uniform maintenance pay; (5) Requires hourly rates of pay for all hospitality employees, except executives, administrators, professionals and commissioned salespersons; (6) Requires that whenever a work shift is long enough to invoke the meal period law, employers will have to either allow employees to bring their own food or give them a meal at a cost no greater than the meal credit amount in the wage order; (7) Permits employers the same powers with respect to tip pooling as they have always had with respect to tip sharing (i.e., to require pooling and/or sharing and to set the percentages that each occupational group receives from the pool or from the sharing); and (8) Requires employers to provide notification to banquet, special event, and package deal customers in writing as to whether an administrative fee does or does not include a gratuity. Employers bear the burden of proving that the notification was sufficient to ensure that a reasonable customer would understand that such charge was not purported to be a gratuity. The required content and form of such notification is set forth in the regulations. (a) There is a rebuttable presumption that any charge in addition to charges for food, beverage, lodging, and other specified materials or services, including but not limited to any charge for service or food service, is a charge purported to be a gratuity. b. Building Service Industry Wage Order (1) Outlines minimum wage; (2) Discusses allowances for apartment, utilities, & tools; (3) Discusses tips/gratuities; (4) Provides a provision for uniforms; (5) Regulates employer records, statement to employee, postings, basis of wage payment, conditions for allowance for apartment, payments in addition to regular wages, the employer residing on building premises, minimum weekly 2013 Bond, Schoeneck & King, PLLC

12 wage for janitors, basis for wage payment, deductions and expenses, learner or apprentice rates, rehabilitation programs, & students obtaining vocational experience. c. Miscellaneous Industries & Occupations Wage Order (applies to most employers) (1) Establishes minimum wage at $7.25/hour after July 24, 2009; (2) Establishes overtime rate, call-in pay, additional rate for split shift and spread of hours, and allowances; and (3) Regulates employer records, statement to employee, postings, basis of wage payment, deductions and expenses, payments in addition to regular wages, learner or apprentice rates, rehabilitation programs, & students obtaining vocational experience. d. Minimum Wage Order for Farm Workers (1) Establishes minimum wage, piece rate, and youth rate; and (2) Regulates rehabilitation and vocational education programs, deductions and expenses, posting and notification, denial or revocation of certificates or approval, employer records, statement to employee, and employment of children under the age of 16 and related exemptions. e. Minimum Wage Order for Non-Profitmaking Institutions (1) A nonprofitmaking institution is defined as any corporation, unincorporated association, community chest, fund or foundation organized and operated exclusively for religious, charitable or educational purposes, no part of the net earnings of which inures to the benefit of any private shareholder or individual. (2) Non-profits are given the choice either to: (a) (b) Pay their employees in accordance with the wage order for non-profitmaking institutions, or Exempt themselves from coverage of the nonprofitmaking wage order by certifying, under oath, that they pay and will continue to pay the statutory minimum wage, unreduced by allowances, to their employees Bond, Schoeneck & King, PLLC

13 (3) Very specific procedures including timing requirements to properly opt-out. (4) The exemption for nonprofit employers can be revoked if: (a) (b) The organization s certification that it would pay each of its employees a wage contained misrepresentations; or The nonprofitmaking institution has violated the provisions of Article 19 (Minimum Wage Act) applicable to it. 2. Section 651 (the Minimum Wage Act ) excludes from the definition of employee an individual employed by a federal, state, or municipal government or political subdivision. a. However, the definition of employee for purposes of the NYLL includes any individual employed or permitted to work in any nonteaching capacity by a school district or board of cooperative educational services.... b. Other sections of the NYLL may apply to public sector employees and the definitions of specific statutes must be checked. (1) For example, Section 162 governing meal periods applies to public sector employees. II. STATUTE OF LIMITATIONS A. Fair Labor Standards Act 1. The standard statute of limitations for violations of the Fair Labor Standards Act is 2 years. 2. The statute of limitations may be extended to 3 years for willful violations of the FLSA. a. Willful: (1) If employer knew or showed reckless disregard for lawfulness of his actions: (a) (b) If his actions were intentional and deliberate If his actions constituted more than mere negligence 2013 Bond, Schoeneck & King, PLLC

14 B. NY Labor Law b. Not willful: 1. 6 years C. Practical Considerations (1) Courts have viewed violations as nonwillful when employers have made efforts to keep up with the requirements of the FLSA, but failed to comply because of mistaken interpretations of the law. 1. Make sure you have proper wage and hour posters. Failure to post may extend statutes of limitations. In litigation, conditional certification notices may be extended to 6 years from the 2-3 years under federal law without proper posting. 2. Recordkeeping a. Keep records for at least 6 years, although in New York, it is better practice to keep records for 7 years. 3. Out-of-court settlements. a. Issues often arise as to how far back voluntary settlement payments should extend in New York. III. LIQUIDATED DAMAGES A. FLSA 1. An employer that violated Sections 6 or 7 of the FLSA (the minimum wage or overtime sections) shall be liable to the employees affected for unpaid minimum wages or overtime compensation and an additional equal amount as liquidated damages. 2. Liquidated damages are compensatory, not punitive, in nature. They are intended to compensate employees for losses incurred because they did not receive payments to which they were legally entitled when payments were due. 3. Good Faith Defense a. Liquidated damages may be avoided by establishing a good faith defense under the FLSA and NYLL. b. Generally, courts have found the standard to be the same under both laws Bond, Schoeneck & King, PLLC

15 B. NY Labor Law c. An affirmative defense may exist where an employer s actions were taken in conformity with written administrative regulation, order, ruling, approval or interpretation of DOL and actions taken were in reliance on such ruling or policy. 1. The Wage Theft Prevention Act went into effect in It amends the notice of wage rate requirements and expands the civil and criminal remedies available to employees when employers fail to comply with these provisions. a. Who is covered? (1) All private sector employers are covered. (2) Employees who work in other states are not covered. (3) Federal, state, and local government employers are not covered, but charter schools, private schools, and not-forprofit corporations are covered, since they are not public entities. b. Mainly, the law requires that workers receive yearly pay notices and proper wage statements, and that they be free from retaliation for complaining about possible violations of the Labor Law. 2. Pre-Wage Theft Prevention Act a. Prior to the Wage Theft Prevention Act: (1) Liquidated damages were limited to 25% of wages due (N.Y. Lab. Law 198-(1-a)); and (2) Violations had to be willful for liquidated damages to be available (unlike the FLSA, where liquidated damages are presumed and compensatory in nature). 3. Post-Wage Theft Prevention Act a. Potential liquidated damages are increased to 100% of wages due, unless the employer is able to show that it had a good faith basis that the method of payment was lawful. b. No willful violation is needed. c. Liability for unpaid wages plus interest, as well as ability to recoup attorney s fees still intact Bond, Schoeneck & King, PLLC

16 d. Employees or labor commissioner can recover prejudgment interest in any civil action to recover unpaid wages and to collect attorneys fees and costs incurred in enforcing any court judgment. e. State labor commissioner has authority to assess up to 100% liquidated damages in an administrative action and can bring any legal action necessary, including an administrative action, to collect on claims. f. If the commissioner finds that an employer engaged in willful or egregious violations, or that the employer previously violated New York wage laws, the commissioner shall direct payment to the commissioner [in other words, the New York Department of Labor] of an additional sum... in an amount not to exceed double the total amount of wages, benefits, or wage supplements found to be due. g. Penalties under Labor Law Section 195 also increased. h. The Wage Theft Prevention Act mimics the FLSA s standard for assessment of liquidated damages. 4. An employee who does not receive the mandatory pay notice of wages within 10 business days of his or her first day of employment may bring a civil action to recover damages of $50 for each workweek that the violation occurred, plus costs and reasonable attorneys fees. These damages are capped at $2,500. Similarly, with respect to existing employees, if any do not receive the mandatory wage statements, the employer may be subject to a civil action and damages of $100 per week, per employee, for each week the violation occurred but not to exceed a total of $2,500, plus costs and reasonable attorneys fees. C. Practical Considerations 1. Make affirmative efforts learn about wage and hour developments. 2. Visit USDOL / NYSDOL website. 3. Subscribe to blogs: 4. Supervisory training. 5. Internal audits. 6. Appropriate wage and hour policies with complaint mechanisms. 7. Enforcement of policies Bond, Schoeneck & King, PLLC

17 IV. SETTLEMENT AGREEMENTS A. FLSA 1. Generally, private settlements are not enforceable under the FLSA. Settlement typically requires approval by the Department of Labor or judicial approval. 2. Exceptions: B. NY Labor Law a. 5 th Circuit case: Martin v. Spring Break 83 Productions, LLC, 688 F.3d 247 (5 th Cir. 2012) (1) In this case, the Circuit Court held that the plaintiffs were bound by the terms of the settlement agreement even though they did not sign it because both the settlement and the collective bargaining agreement stated that the union was the plaintiffs authorized representative. The Court further noted that the plaintiffs accepted and cashed their settlement checks, and the fact that the plaintiffs were represented by a union and the settlement was reached during the course of pending litigation minimized any suggestion of unequal bargaining power between the parties. (2) This decision was positive for employers, in that it may lead the way for private settlements. b. EDNY Case: Picerni v. Bilingual SEIT & Preschool Inc., 12 Civ. 4938, 2-13 U.S. Dist. LEXIS (E.D.N.Y. Feb. 22, 2013) (1) This case involved the issue of whether parties can settle an FLSA case filed in court without direct judicial review and approval of settlement terms. The court permitted dismissal without review, but noted that parties take a risk of enforceability if done without direct judicial review and approval. 1. Generally, private settlements of minimum wage and overtime claims are enforceable under the NYLL. 2. Wright v. Brae Burn Country Club, Inc., no. 08 Civ (DC), 2009 U.S. Dist. LEXIS 26492, at *11 (S.D.N.Y. Mar. 20, 2009) a. There is no express restriction on the private settlement or waiver of wage and hour claims under New York Law Bond, Schoeneck & King, PLLC

18 b. A plaintiff can waive wage and hour claims under the NYLL while FLSA claims remain. c. For other provisions of the NYLL, each statute must be examined. C. Certain NY Labor Law provisions may be waived, others cannot. 1. New York courts have upheld releases of minimum wage and overtime claims in cases where the employee received consideration for signing the release and the release complied with all contractual requirements. D. Practical Considerations 1. Should an employer try to obtain a release if it elects to make voluntary back wage payments? a. Highly fact sensitive inquiry. V. OVERTIME THRESHOLDS A. FLSA (1) May still be some benefits to obtain release and other language in a settlement agreement. (2) Reference good faith dispute as to hours worked and/or compensation paid, if appropriate ( admissions ). (3) Reference parties agreement as to hours worked and other helpful admissions. (4) Other provisions like arbitration clause, agreement not to opt-into collective action, jury waiver, etc. (Some of these provisions may also have enforceability issues). 1. Non-exempt employees must be paid one and one-half times their regular rate of pay for all hours actually worked in excess of 40 per week. B. NY Labor Law 1. Under the NYLL, the same rule applies, but residential employees must be paid one and one-half times their regular rate for all hours actually worked in excess of 44 per week. VI. EXEMPTIONS A. Types of Exemptions 1. Section 13 of the FLSA provides the following exemptions: 2013 Bond, Schoeneck & King, PLLC

19 a. Executive, administrative or professional employees; b. Outside Salesmen; c. Employees of amusement or recreational facilities, camps, or religious or non-profit educational conference centers; d. Farmers; e. Learners, apprentices, messengers, students, and handicapped workers to the extent that they are exempted by regulations, order or certificate of the Secretary of Labor; f. Employees of weekly, semiweekly or daily newspaper publications with a circulation of less than four thousand; g. Switchboard operators employed by independently owned public telephone companies which do not have more than seven hundred stations; h. Seamen on vessels other than American vessels; i. Babysitters who work on a casual basis or caregivers; j. Certain Criminal investigators; k. Computer Professionals; l. Motor Carriers; m. Domestic Companionship. 2. The NYLL provides the following exemptions: a. Part-time babysitters; b. Farm laborers; c. Executive, administrative or professional employees; d. Outside salesmen; e. Taxicab Drivers; f. Volunteers, learners or apprentices who work for a corporation, unincorporated association, community chest, fund or foundation organized and operated exclusively for religious, charitable or educational purposes; 2013 Bond, Schoeneck & King, PLLC

20 B. Salary Level 1. FLSA g. Members of a religious order, or duly ordained, commissioned or licensed ministers, priests, rabbis, sextons or Christian science readers; h. Students who work for religious or charitable institutions; i. Physically or mentally impaired individuals who work for a religious, educational or charitable institution; j. Those who work for a summer camp or conference of a religious, educational or charitable institution for not more than three months annually; k. Staff counselors at children s camps; l. Students who work for a college or university fraternity, sorority, student association or faculty association; m. Those employed by a federal, state or municipal government or political subdivision thereof; n. Volunteers who work at a recreational or amusement event run by a business that operates such events, provided that no single such event lasts longer than eight consecutive days. Employees who earn at least $455 per week ($23,660 per annum) are exempt from overtime compensation requirements. (Computer professionals are exempt if they earn $455 per week or $27.63 per hour.) To determine whether the payment meets the minimum salary level requirement, one must consider the time worked on the job and analyze whether the payment is at a rate that would amount to at least $455 per week if the employee worked 40 hours. For example, an artist paid $250 for a picture that took 20 hours to complete meets the minimum salary requirement since the rate would yield $500 if 40 hours were worked. The salary level test does not apply to teachers, lawyers or doctors. 2. NY Labor Law The NYLL does not impose any additional criteria beyond those required by the FLSA, except that executive and administrative employees must earn at least $ per week Bond, Schoeneck & King, PLLC

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