Gardy & Notis Employment Division
Welcome to the employment division of the class action firm Gardy & Notis, LLP. We're located in New York, but we're available to represent employees nationwide. We also represent select employers. We offer free, confidential consultations with an attorney in person or by phone to help you determine if you have a case. If you have been laid off without proper notice, denied minimum wage, overtime pay or tips, we can help. If you have been falsely labeled as an independent contactor, denied overtime pay because you are called a "manager," or required to work for free as an unpaid intern or a "volunteer," we can help. Read our Breaking News section below to find out some of the most recent developments in the law, have a look at our blog for more in-depth analysis, and read
about us and some of the
cases we are working on. Contact us if you believe you have been a victim of any of the following unlawful practices:
- Failure to pay overtime
- Failure to pay for all work performed (not being paid for doing some parts of your job, arriving early to prep for your shift, working before or after you punch out)
- Laid off without proper notice (60 days under the WARN Act)
- Unpaid internship or "volunteer" work for a for-profit employer
- Misclassification as exempt from overtime pay as a manager, independent contractor, creative professional, commissioned sales employee, computer professional, or outside sales employee
- Illegal on-call policies
- Failure to pay tips
- Including ineligible employees in tip pools
- Addition of a "service charge" to bills by a restaurant/catering company and failure to pay that service charge to service employees as a tip
Gardy & Notis Files Class Action Against Nursing Home for Failure to Pay Overtime
April 4, 2017--Gardy & Notis has filed a class and collective action under the New York Labor Law and the Fair Labor Standards Act againt Northern Manor Multicare Center, Inc., for its willful failure to pay nurses overtime. The complaint alleges that the nurses at Northern Manor frequently worked over 40 hours per week, but were only paid for 37.5 hours per week. Click here to read the complaint.
Gardy & Notis Files Class Action Against Retriever Medical/Dental Payments, Inc. for Misclassification of Sales Reps as Independent Contractors.
February 13, 2017--Gardy & Notis has filed a class action against Retriever Medical/Dental Payments, Inc. and its executives Frank Shiner, Dominick Colabella, and Scott LoPresti, for misclassifying its sales representatives as independent contractors when, in reality, those sales reps should be employees. The complaint alleges that Defendants exercised overwhelming day-to-day, hour-to-hour control every aspect of the Sales Reps' work including, but not limited to, their appearance (brown or black polished shoes, clean shaven, sideburns not past the earlobe); setting the Sales Reps' daily appointment schedule; requiring that all communications with potential customers go through Retriever; requiring Sales Reps to review each unsuccessful sales appointment with their supervisor; setting multiple minimum performance standards, the failure to follow which may result in pay deductions or "probation;" requiring the Sales Reps to follow Defendants' sales script; and prohibiting the Sales Reps from working for other companies during and after their employment through an overbroad non-compete clause.
The complaint alleges that Defendants made improper deductions from the Sales Reps' pay in the form of fines and penalties, and required the Sales Reps to pay for many costs--including the costs to pay Retriever's employees--that would not be permissible if the Sales Reps were properly classified as employees. The complaint also alleges that the Sales Reps were required to pay the employer's share of social security taxes, which they would not have to do if they were properly classified as employees. Click here to read the complaint.
Gardy & Notis Files Class Action Against North Shore University Hospital
November 28, 2016--Gardy & Notis has filed a class and collective action against North Shore University Hospital (a subsidiary of Northwell Health) on behalf of employees who work a 12-hour "flex shift." The complaint alleges that these employees, including RNs, LPNs, and employees in various other positions, work 12 paid shifts per month and are required to work an unpaid "13th Shift" once a month. As a result of working this unpaid 13th Shift, the employees of North Shore are denied overtime pay. To read the complaint, click here. If you are interested in learning more about this please contact Orin Kurtz at 212-905-0509.
Gardy & Notis Files Class Action Against Kalitta Air for Failure to Remit Hazard Pay and Failure to Pay Overtime
November 23, 2016--Gardy & Notis has filed a class action against Kalitta Air and its owner, Conrad "Connie" Kalitta, the retired drag racer, for failure to remit hazard pay to its employees who traveled to "combat zones" on Kalitta's aircraft. The complaint alleges that Kalitta, which contracts with the federal government, receives payments for "hazard pay" that is to be paid over to the employees on Kalitta's aircraft who travel to such dangersous locations as Bagram Air Force Base in Afghanistan. Despite receiving this hazard pay designated for its employees, according to the complaint, Kalitta does not pay that money to the employees. The complaint also allegest that Kalitta pays its 747 mechanics fixed weekly pay no matter how many hours they work, and does not pay them at overtime rates for hours worked over 40 in violation of the Fair Labor Standards Act. Click here to read the complaint.
Orin Kurtz To Speak at Marino Legal Institute
October 1, 2016--On Saturday, October 15, Orin Kurtz will give a CLE presentation at the Marino Legal Institute on the subject of employment class and collective actions. The presentation will begin with basic concepts of wage & hour law under the Fair Labor Standards Act and the New York Labor Law, will then progress to how to determine if a case is a class or collective action, and will then delve into the unique issues that class and collective action lawyers face in their daily practice. Looking forward to seeing our lawyer friends there!
Gardy & Notis Files Class Action Against Catering Company
September 28, 2016--Gardy & Notis has filed a class and collective action under the Fair Labor Standards Act and the New York Labor Law against the Long Island company known as Carlyle Catering. The complaint alleges that Carlyle deliberately denied its employees their proper pay in two ways. First, Carlyle scheduled its employees to work more than 40 hours per week at different venues, making it look like the employees were working under 40 hours per week at several venues, to avoid paying overtime. Second, the complaint alleges that Carlyle added a 20-22% "service charge" to customers' bills and did not pay that service charge to its waitstaff in violation of New York Labor Law Section 196-d. Last, the complaint alleges that Carlyle's owner, Steve Carl, took cash tips that were left for the waitstaff, also in violation of New York Labor Law Section 196-d. To read the complaint, click here.
Court Says Class Action Waivers Cannot be Enforced
May 27, 2016--In recent years, many federal courts have said that employees can be pressured into giving up their right to be part of a class action. However, this week, one well-respected appeals court said the opposite: the Seventh Circuit has said class action waivers are illegal. This is great news for employees. Check our blog later this week for an entry about class action waivers and the new decision, Lewis v. Epic Systems.
Gardy & Notis Announces Class Action Suit Against Patriarch Partners and Lynn Tilton Regarding TransCare Layoffs
February 29, 2016--Gardy & Notis filed a class action today against Patriarch Partners, the private equity firm that owned TransCare Corporation, and Lynn Tilton, the founder and CEO of Patriarch, for their role in causing TransCare to lay off all or substantially all of its employees. The complaint, which was among the first filed against Patriarch and Ms. Tilton, allegest that Patriarch and Ms. Tilton violated the federal WARN Act and the New York WARN Act by failing to provide TransCare's employees with the required notice under both WARN Acts. The federal WARN Act requires 60 days notice of a mass layoff, and the New York WARN Act requires 90 days notice before a mass layoff. The complaint alleges that Patriarch and Ms. Tilton are liable under the WARN Acts because they were centrally involved in the decision to terminate TransCare's employees. To read the complaint, click here.
If you would like more information about this case, would like to provide information, or would like to join, please contact Orin Kurtz at (212) 905-0509.
Orin Kurtz to Speak at Marino Legal Institute
February 17, 2016--This Saturday, February 20, Orin Kurtz will give a CLE presentation at the Marino Legal Institute on the subject of employment class and collective actions. The presentation will begin with basic concepts of wage & hour law, will then cover wage & hour concepts that arise specifically in a law office (for instance, is a paralegal exempt from overtime pay requirements?) and will then progress to how to determine if a case is a class or collective action, and will then delve into the unique issues that class and collective action lawyers face in their daily practice. Looking forward to seeing our lawyer friends there!
Gardy & Notis Files Class Action Against Access-A-Ride Provider
January 22, 2016--Gardy & Notis has filed a class and collective action against New York City's longest-serving and lartest Access-A-Ride provider, Maggies Paratransit Corp., on behalf of paratransit and/or bus drivers who have been employed by Maggies at any time since 2010. The complaint alleges that the Drivers were not paid for all hours worked, including overtime hours, in violation of the Fair Labor Standards Act and the New York Labor Law. The complaint alleges that Maggies reduced the Drivers' pay based on several unlawful policies. First, under the "Manifest Pay" policy, the Drivers were only paid for time they spent transporting passengers as reflected on the manifests showing their routes, pickups, and dropoffs. Second, the Drivers were not paid for preparatory time at the beginning of the day, and end-of-the-day work, performed at Maggies' vehicle storage facilities. Third, the Drivers were subject to Maggies' "slack time" policy, where the Drivers' pay was deducted if their vehicles were not moving while they waited to pick up passengers. The complaint also alleges that Maggies automatically deducted from the Drivers' pay for a lunch break on work days longer than six hours, even if the Driver did not actually take a lunch break.
Click here to read the complaint.
Orin Kurtz Speaks in Vail, Colorado
January 7, 2016--Today, Orin Kurtz started the New Year off with a visit to the National CLE Conference in Vail, Colorado. Speaking for the Conference's Labor & Employment section, Orin and two colleagues gave a presentation called "Practical Insights on Litigating and Defending Collective Claims Under the FLSA." The discussion was lively, casual and informative; the audience--and the panelists--learned a good amount from each other. And afterwards, being in the beautiful mountains of Colorado, everyone got out and enjoyed the slopes and nature.
"Independent Contractors" File Class Action Against Amazon
October 29, 2015--Despite recent scrutiny by government agencies, many large companies are still hiring workers as "independent contractors" when they should be called employees. Why do these large employers try so hard to fit a round peg in a square hole? The answer is simple: to save money. Hiring employees is expensive, with the employer paying for training, administrative costs (even "simple" things such as payroll), the employer's share of taxes, liability insurance, supplying and maintaining equipment, paying overtime, paying salaries during slow periods, and so on. When hiring "independent contractors," all of those costs are shifted to the worker and the employer pays a simple lump sum by check. The "independent contractor" bears all of the costs, including the purchase of a van to make deliveries in some cases, and sees very little in take-home pay.
For a company as big as Amazon, that can mean millions and millions of dollars saved a year. Those savings can go away quickly, however, if an employee decides to take action. And that's exactly what an Amazon employee in California recently did. In Troung v. Amazon.com, Inc. (click here to read the complaint) a group of delivery drivers for who were hired by a courier company to deliver packages for Amazon Prime Now (Amazon's same-day delivery service) and were classified as independent contractors.
Put simply, the employment laws just don't allow for a company to hire people, excercise complete control over them, dictate their hours and responsibilities, and then call them independent contractors. Governments and employees are taking a stand, and you can too. If you feel you're misclassified as an independent contractor, contact us at (212) 905-0509 to discuss your options. Also, be on the lookout for our latest blog entry, coming soon, about the differences between an independent contractor and an employee.
Do You Work On-Call For a Retail Store?
October 26, 2015--It has come to our attention that many large retail stores may have illegal on-call policies. Many of these stores, including J.C. Penney, The Gap, and Target, require employees to be available to work at a moment's notice, depending on the store's need for the day. Employees have to remain available all day, and may be summoned to work by text message or a phone call. Sometimes, an employee may show up for their shift and be told they are not needed and can go home. Each of these policies may violate the Fair Labor Standards Act and the New York Labor Law. Contact Orin Kurtz at (212) 905-0509 if you would like to learn more.
TransCare Class Action Settlement Approved
October 14, 2015--Gardy & Notis is proud to announce that the Honorable Ramone E. Reyes, in Brooklyn federal court, has granted "final approval" of a $250,000 settlement.
In this class and collective action, the complaint alleges that TransCare Corporation failed to pay its paratransit drivers for all hours worked, including overtime, in violation of the Fair Labor Standards Act and New York Labor Law. Specifically, the complaint alleges that TransCare does not pay its drivers for time between picking up their vehicle and pickup of their first passenger, for waiting time between passengers, and for time between dropping off their last passenger and dropping off their vehicle. This settlement provides an outstanding recovery, with some paratransit drivers receiving as much as $15,000. Click here to read the complaint.
Gardy & Notis Files Nationwide Collective Action Against Ratings Company Nielsen
July 1, 2015--Gardy & Notis, with co-counsel, commenced a nationwide collective action under the Fair Labor Standards Act against The Nielsen Company (US), LLC and Nielsen Holdings, N.V. The complaint alleges that Nielsen did not pay its employees with the title of Field Trainer (also known as Market Quality Specialist) for all of their hours worked, including overtime. Nielsen requires the Field Trainers to work from home offices, rather than Nielsen's offices. Although they performed work for Nielsen at the start of the day in their home offices, Nielsen deducted the first half hour of "drive time" to their first appointment and considered that drive to be non-compensable commuting time. Nielsen also deducted the first half hour of "drive time" from their last appointment to their home office, even though the Field Trainers performed work for Nielsen at the end of the day in their home offices. The plaintiff contends that Nielsen should have paid the Field Trainers for all of their drive time because that drive time was part of their work day and was not commute time. Click here to read the complaint.
Orin Kurtz Selected to Speak in Vail, Colorado
June 30, 2015--Orin Kurtz has been selected to speak about employment class actions on a panel at the National CLE Conference in Vail, Colorado, which takes place from January 6-10, 2016. Orin will speak about discovery strategies in class action employment litigation. The agenda for the conference will be posted soon at www.nationalcleconference.com.
Orin Kurtz Presents Continuing Legal Education
May 16, 2015--Orin Kurtz presented a CLE to a classroom packed full of lawyers. This lecture was taught in conjunction with Marino Legal. Orin spoke about the basics of Wage & Hour law, including a discssion of who is covered by the Fair Labor Standards Act and New York Labor Law, overtime pay requirements, exemptions from the overtime requirements (both proper and unlawful), and also touched on more advanced topics such as class and collective actions and class action waivers. We anticipate receiving a video of Orin's lecture and will post excerpts as soon as we can.
Orin Kurtz Speaks At American Bar Association Employee Rights & Responsibilities Committee Mid-Winter Meeting in Naples, Florida
March 28, 2015--Orin Kurtz, of Gardy & Notis's Employment Division, spoke at a panel this morning about the ethics of obtaining new clients through social media. Entitled "Making it Rain: The Ethical Implications and Best Practices for Client Soliciation," the presentation involved a lively discussion of ethical quandries a lawyer may face when marketing to clients on Facebook, Twitter, LinkedIn, Groupon, and through direct communication. Orin joined moderator George Washington, Jr. (Orange Business Services), and panelists Michael Z. Green (professor, Texas Wesleyan University School of Law) and Michelle Craig (Transcendant Legal) for analysis of the ethical rules governing client solicitation as applied to hypothetical (and some real) factual scenarios. Here is the view from Orin's seat on the podium.
Gardy & Notis Files Class Action Against Cosmetics Company For Failure to Pay Employees at Overtime Rates
January 13, 2015--Gardy & Notis commenced a class and collective action against Saaqin, Inc., a Long Island-based company, for failure to pay its employees at overtime rates when the employees worked over 40 hours in a work week. Click here to read the complaint.
Gardy & Notis Files Class Action Against the Largest Burger King Franchise in New Jersey For Misclassification of Assistant Managers as Exempt From Overtime Pay
December 29, 2014--Gardy & Notis commenced a class and collective action against Parade Enterprises, LLC on behalf of all assistant managers ("ASMs") at Parade's Burger King franchise restaurants. Parade Enterprises, the largest Burger King franchise in New Jersey, has 45 Burger King restaurants. The complaint alleges that Parade misclassifies the ASMs as exempt from the overtime requirements of the Fair Labor Standards Act and the New Jersey Wage Wage and Hour Law, and as a result fails to pay them at overtime rates when they work more than 40 hours in a week.
To be an exempt "executive" or manager under federal and New Jersey law, an employee must, among other things, be paid on a "salary basis" at a rate of $455 per week and the employee must have the the authority to hire or fire other employees or at least have substantial input into hiring and firing. The complaint alleges that the ASMs are not legitimately salaried and do not have any authority to hire or fire employees.
With regard to the "salary basis" test, the employer must pay the employee a set amount that does not vary based on the quantity or quality of work performed. If an employer deducts pay for missing partial days of work, or for taking sick days, then the employee is not legitimately paid on a "salary basis." The complaint against Parade Enterprises alleges that the ASMs were not paid on a salary basis becuase they were deducted pay for sick days and partial missed days.
The complaint also alleges that the ASMs do not have the authority to hire or fire employees; rather, the named plaintiff attempted to fire an employee and upper management overruled that decision.
If you would like to read the complaint, click here.
Gardy & Notis Files Class Action Against Bus Company for Failure to Pay Overtime
December 22, 2014--Gardy & Notis has filed a class and collective action complaint against two related bus companies, Newburgh Beacon Bus Corp. and Leprechaun Lines, Inc., for failure to pay their bus drivers at overtime rates. The complaint alleges that the two companies, which operate multiple commuter and shuttle bus lines in Orange County, New York, do not pay their drivers at time and one half their hourly rate for hours worked over 40 per week. Rather, in violation of the Fair Labor Standards Act and the New York Labor Law, the companies pay the drivers at their regular hourly rate for those hours. Click here to read the complaint.
NFL Cheerleaders Struggle to Make Ends Meet
We often equate a glamourous career with riches. In at least one situation the two don't go together. In this article, the New York Times goes into great detail about the failure of multi-billion dollar National Football League teams to pay their cheerleaders minimum wage. This article may also lead you to question whether being an NFL cheerleader is even glamorous; the Times describes an event where "high rollers" at a golf tournament paid to watch the cheerleaders do back flips in bikinis, and paid to have the cheerleaders ride around in golf carts that didn't have an extra seat. Where did they sit? Read the article to find out.
If you are working as a cheerleader in the NFL or in any other sports league and not being paid for all hours worked, contact the Employment Division of Gardy & Notis to learn about your rights.
US Department of Labor Study Finds Extensive Violations of Wage Law in New York and California
December 4, 2014--According to the New York Times, the US Department of Labor commissioned a study that found rampant violations of the labor laws. "The study, which examined work force data for the two states, found that more than 300,000 workers in each state suffered minimum-wage violations each month." Click here to read the complete article.
Although not stated in the article, workers may be unaware that they are being underpaid in violation of the labor laws. The labor laws are complex and highly technical, and a violation is not always easy to detect. An experienced labor lawyer can find violations that are costing employees. If you have any reason to believe you're being underpaid, contact us for a free consultation.
Orin Kurtz Is Selected to Speak at the American Bar Association Employee Rights & Responsibilities Committee Midwinter Meeting in March, 2015
November 21, 2014--After speaking about immigration-related employment class actions at the 2014 ABA Employee Rights & Responsibilities Midwinter Meeting in Cabo San Lucas, Mexico, Orin Kurtz has been invited to speak at the upcoming 2015 ABA ERR Midwinter Meeting in Naples, Florida. Orin will speak at a panel on Saturday, March 28 entitled Making it Rain: The Ethical Implications and Best Practices For Client Solicitation. Click here to see the brochure for the upcoming meeting!
Gardy & Notis Investigates Access-A-Ride
On May 5, Gardy & Notis filed a class action against TransCare Corporation (whose Access-A-Ride buses bear the logo "TC Paratransit") for failure to pay its paratransit drivers for all hours worked, including overtime, in violation of the Fair Labor Standards Act and New York Labor Law. Specifically, our complaint alleges that TransCare does not pay its drivers time between picking up their vehicle and pickup of their first passenger, for waiting time between passengers, and for time between dropping off their last passenger and dropping off their vehicle.
It has now come to our attention that many other Access-A-Ride companies may be underpaying their drivers in the same way. If you work for any of the following companies, or have knowledge of their practices, please contact us:
Atlantic Paratransit, Inc.
PTM Management Corp.
Columbus Transit LLC
Empire Paratransit Corp.
GVC II LLC
Maggies Paratransit Corp.
MV Transportation, Inc.
CBT Para Transit
All information you provide will be held in confidence.
Orin Kurtz Speaks About Employment Class Actions at American Bar Association's Employment Rights & Responsibilities Committee Midwinter Meeting
September 5, 2014--Please forgive us for the belated update on this event....Orin Kurtz, of Gardy & Notis's Employment Division, spoke about employment class actions at the 2014 American Bar Association Employment Rights & Responsibilities Committee Midwinter Meeting. Specifically, Orin spoke about employment class actions for Title VII discrimination and failure to pay wages to employees who have been "benched" (hired and not given any actual work) by employers. Read this blog post to find out more.
Thought of the Day: Human Resources is Not Your Friend
September 4, 2014--We frequently receive calls from employees who have had problems at work, and received little or no help from Human Resources--or worse, HR sides with the employer. This should not come as a surprise: despite its benevolent-sounding title, HR is a department of the company, and it's there to protect the company from lawsuits. You may receive some assistance from HR, but that is only to help the company document the fact that it complied with the law (or to help smooth over a violation of law). If you are in a situation at work that involves HR, you should contact a lawyer who can advise you of your rights because HR is not likely to do so.
Gardy & Notis Files Class Action Against TransCare Corporation for Failure to Pay "Straight Time" Wages and Overtime Wages
On May 5, 2014, Gardy & Notis filed a class and collective action complaint against TransCare Corporation, a medical transport company that is a contractual provider for the Access-A-Ride program in New York. The complaint alleges that TransCare does not pay its bus drivers/paratransit drivers, including those who work for the Access-A-Ride program, for all hours worked and fails to pay them overtime. The complaint alleges that drivers may work eleven or more hours a day, and may be paid for only six or seven hours. This is so because TransCare does not pay the drivers for time between picking up their vehicle and pickup of their first passenger, for waiting time between passengers, and for time between dropping off their last passenger and dropping off their vehicle. The complaint alleges that the drivers should be paid for all of the time between pickup of their vehicles and dropoff of their vehicles, because they are working at all times: the drivers may be called to pick up a passenger at any time, and they are attending to TransCare's vehicles.
Click here to read the complaint. If you currently work for TransCare, or have worked for TransCare at any time and have not been paid for all hours worked, contact Orin Kurtz at (212) 905-0509.
Gardy & Notis Files Class Action Against California Employer for Retention of Service Charge
On January 10, 2014, Gardy & Notis filed a class action in California Superior Court against Bel-Air Bay Club, an upscale venue in Pacific Palisades that hosts private parties. The complaint alleges that Bel-Air Bay Club adds a 22% "service charge" onto its customers' bills and does not pay that service charge to the employees who provide service. Because the reasonable consumer believes that a "service charge" is a tip, and believes that a tip has already been paid to the employees by addition of the 22% service charge, customers don't leave any tips for Bel-Air's employees who are providing service. The complaint (click here) asks the court to order Bel-Air to pay the service charge to its employees.
Could You Live on $7.25 an Hour?
Read this recent New York Times article to learn about those who work for minimum wage or near minimum wage.
Gardy & Notis Files Action Against The Nielsen Company
October 31, 2013--Gardy & Notis, LLP has filed a Fair Labor Standards Act class action against The Nielsen Company. Known for its "Nielsen Ratings," the Nielsen Company does not rate well in the overtime department. According to the complaint, Nielsen does not pay its Field Service Representatives for all the hours they work and, as a result, the Field Reps are denied overtime pay.
Under federal law, an employee is not entitled to be paid for commuting to and from work. However, if the employee reports to work and then travels during the work day, that time is compensable. Here, Nielsen does not pay the field reps for travel time after their work day begins. Nielsen does not have an office, and instead requires the field reps to set up a "home office." In the morning, the field reps "report" to their home office, where their work day begins. At their home offices, the field reps perform substantial work for Nielsen's sole beneft including checking their schedules, answering emails and returning calls, and pre-programming and pre-packing the tracking equipment that will be installed in consumers' televisions. After performing this work, the field reps then travel to their first appointment for the day.
Although the field reps begin their work day at their home offices, Nielsen does not pay them for traveling to their first appointment of the day. The apparent jusitification is that reporting to their home offices does not count as the start of the work day. Nielsen also does not pay the field reps for traveling to their home offices after their last appointment, even though the field reps perform substantial end-of-the-day work. The complaint alleges that this practice is in violation of the Fair Labor Standards Act.
Has your employer forced you to work "off the clock"? If so, contact us to discuss your legal rights.
Independent Contractor Alert
October 1, 2013--On Friday, a freelance writer for the Hollywood Reporter filed a class action against its publisher. The freelancer, who was classified as an independent contractor, alleges that he and freelancers in a variety of positions should have been classified as employees rather than independent contractors.
The complaint claims that THR's publisher, Prometheus Global Media LLC, willfully denied freelancers overtime wages, timely rest breaks, off-duty meal periods and other benefits given to those considered employees, despite virtually identical job descriptions and duties, in violation of California's Labor Code.
"With the exception of their status as independent contractors, freelancers are indistinguishable from employees in all material respects," the complaint said.
The complaint alleges that freelancers are subject to the exact same working conditions as writers who are classified as employees. Freelancers work the same hours, are required to attend the same mandatory meetings, have the same supervisors, and are subject to the same disciplinary policies as employees. If proven true, this allegation could help the freelancers show that they are employees; an essential question in deciding whether a worker is an "employee" is whether the employer exercised control over the worker.
Because the freelancers are classified as independent contractors, they are not paid at overtime rates, are not given the same meal and rest breaks that employees are entitled to, and are not reimbursed for business expenses.
Although not mentioned in the complaint, it is likely that the freelancers also were required to pay their employer's share of taxes, such as social security. To learn more about the harm caused to workers who are misclassified as independent contractors, click here.
The class consists of all individuals who performed work for Prometheus as freelancers in California beginning four years before the filing of Friday's complaint. In addition to THR, Prometheus owns Billboard, Back Stage and Adweek. The complaint alleges that Prometheus employs freelancers at each of these divisions and, at each division, improperly classifies the freelancers as independent contractors.
Unpaid Interns at Madison Square Garden File Class Action
September 18, 2013--In yet another indication that the era of unpaid work is ending, an intern has filed a class action suit against Madison Square Garden for misclassifying him as an unpaid intern when, in reality, he was an employee. The plaintiff, who worked for MSG from September, 2011 through January, 2012, alleged that he and approximately 500 other "interns" worked five days a week for MSG for no pay. Rather than being placed in a learning environment, as the US Department of Labor's internship guidelines require, the plaintiff and the other interns were forced to perform menial tasks that were essential to MSG's operations. The plaintiff's internship duties included data entry, tracking inventory, opening packages and organizing items contained in the packages. Click
here to read the complaint.
If Your Employer Asks You to Sign a Contract With an Arbitration Clause...
....Be very, very careful. Do anything you can to avoid it. A contract, or an employee handbook, that has an arbitration clause or a "class action waiver" can prevent you from bringing a case against your employer in court, and can also prevent you from joining together with other employees (bringing a class action) even if your employer harms many people in the same way (for instance, if your employer denies all of its employees overtime pay). Although a provision like this is completely unfair, and does nothing other than give an employer all the power, courts are now enforcing these clauses against employees.
How do you know if a contract has an arbitration clause or class action waiver, and what are your options if you are given a contract to sign that has one of these? Read here for more information.
Unpaid Volunteers and Unpaid Interns Make Waves
August 8, 2013 -- This week saw the filing of two cases brought on behalf of unpaid workers. In the first case, a class action alleged that Major League Baseball violated state and federal employment labor laws by staffing its lucrative All-Star FanFest events with unpaid "volunteers." According to the complaint, the FanFest events generated over $91 million for the local economy. However, MLB--one of the premier professional sports leagues in the world, with over $7 billion of revenue--paid no wages to the volunteers who worked at FanFest. Instead, the 2000 volunteers who worked for MLB received apparel such as a shirt, hat and backpack, a water bottle, a baseball, and free admission to FanFest.
One of the most important things a court looks at to determine if a worker is an employee, and should be paid minimum wage or overtime, is the amount of control that the alleged employer exercises of the worker. The more control that is exercised, the more likely a court is to find an employer-employee relationship. In this case, it appears that MLB exercised substantial control over the volunteers. MLB required the volunteers to undergo mandatory background checks, to come for mandatory training and orientation, and only gave them certain benefits if they worked a set number of shifts.
In the second case, Columbia Records, owned by Sony, was sued in a class action by a group of interns who allege that they are entitled to be paid under state and federal labor laws.
Although many for-profit companies use interns, they may be in violation of federal or state law by not paying those interns. The only way a company can avoid paying an intern is if the the internship is for the benefit of the intern and is similar to training that would be given in an educational environment. If the intern is performing menial tasks, like getting coffee and organizing files, they should be paid. Also, if the intern replaces an employee or does work that an employee would do if there were no intern, then the intern should be paid.
Check back with us shortly, we're preparing a full blog post on these two cases and the general laws concerning unpaid work.
Apple Store Workers File FLSA Class Action Over Unpaid "Personal Package and Bag Searches"
On July 25, 2013, employees who work at the Apple Store filed a nationwide Fair Labor Standards Act class action against Apple, Inc. for requiring off the clock work. Specifically, the complaint alleges that all employees were required to undergo "personal package and bag searches" when leaving work--and they have to go through these searches after
punching out. As a result of this policy, the plaintiffs allege that they were deprived of overtime pay. Click
to read our blog post about this case. Click
to contact us if you have been required to work off the clock and were:
- Required to undergo security/bag checks after punching out
- Required to put on a uniform, at work, before punching in
- Required to change out of a uniform, at work, after punching out
- Required to perform work at home, including sending and receiving emails
- Required to report to work early to "prepare" for your shift without being paid
- Required to stay past your shift without being paid
- Not compensated for time spent in training or meetings
Court Denies Employer's Request for Facebook Posts Made During Working Hours
Before bringing any case, one of the first things I tell my clients is: Don't post anything about your job, your case, or your employer on Facebook or any other social media site, and don't write any posts during working hours. Why do I give this advice? Read this blog post to find out more.
Gardy & Notis Investigates: Wolfgang Puck in California
You may have read in the New York Post (click here), or on various other media outlets, about our case against Wolfgang Puck Catering and Events for adding a service charge to customers' bills and not paying that service charge over to its employees in the State of New York. We are now investigating Wolfgang Puck for the same conduct in California. If you work for Wolfgang Puck in California and have been affected by this practice, contact us to discuss your options.
To read the complaint in our New York case, click here.
Class Certification Alert
In Ribby v. Liberty Healthcare, a federal judge in Ohio granted a plaintiff's motion for "conditional certification" under the Fair Labor Standards Act. The plaintiff in the case was a nurse who alleged that the defendant, Liberty Healthcare, automatically deducted 30 minutes from the hourly compensated RNs’, LPNs’, and STNAs’ pay each day regardless of whether or not they received a meal period or were required to perform work during their meal period. As a result of this deduction, Liberty Healthcare failed to pay Plaintiff and other similarly situated RNs, LPNs, and STNAs for meal periods during which they performed work. Also as a result of this deduction, Liberty Healthcare failed to pay the plaintiff and other nurses substantial amounts of overtime. The court determined that the plaintiff and the other nurses are "similarly situated," and that the plaintiff is permitted to send notice of the case to the other nurses, informing them of their right to join the case as plaintiffs. Click here to read the decision. Click
here to read our blog post about the decision.
Independent Contractor Alert
On July 3, 2013 a federal judge in Massachusetts determined that former FedEx pick-up and delivery drivers were misclassified as independent contractors. Under Massachusetts law, workers are considered employees, and not independent contractors, unless the putative employer can show otherwise. One of the more interesting arguments FedEx tried to make in this case was that it is not in the package pick-up and delivery business, but rather it is in the "logistics" business. The judge didn't buy it. Click here to read the decision, and click
here to read our full blog post on the decision.
Gardy & Notis Investigates Brookstone:
On July 1, 2013, a class action complaint was filed against Brookstone on behalf of all California employees who worked in its stores as far back as 2009. The complaint alleges that Brookstone did not pay its employees for skipped meal and rest breaks, failed to pay overtime, did not keep accurate records of employees' hours worked, failed to pay employees all compensation they were owed after termination, and failed to pay some of its employees at required minimum wage rates.
Brookstone has 263 strores nationwide. If you work for Brookstone and your rights were violated, contact us for a free consultation.
Unpaid Internship Alert:
July 1, 2013--A New York federal judge recently gave the plaintiffs permission to appeal a May 8, 2013 order that denied the plaintiffs' motions for summary judgment and class certification. The plaintiffs were interns at Hearst Corporation and worked as unpaid interns. They sued, claiming they are employees and are entitled to be paid under federal and New York State labor laws. In their motion for summary judgment, the plaintiffs asked the court to declare that they are employees "as a matter of law." In other words, the employees argued that the facts so clearly showed that they were employees that no trial was necessary.
Although the court denied the plaintiffs' motion for summary judgment, he agreed that the appeals court should hear the case and, if necessary, clarify the standards for determining whether a worker is an employee. Click here to read the opinion.
Tip Pooling Alert:
June 26, 2013--Today, the New York Court of Appeals ruled that employees who have "meaningful authority," such as participation in hiring and firing, and setting the schedules of other employees, may not participate in tip pools. Read our blog to learn more.
June 26, 2013--A federal judge has approved a $660,000 settlement in a class action on behalf of reporters who worked for TribLocal, a section of the Chicago Tribune, between February 2009 and September 2012. The complaint alleged that the reporters' employer, Chicago Tribune Company, did not pay at overtime rates when its reporters worked more than 40 hours per week. Click here to read the complaint.