Christine Duignan, Author at Shavitz Law Group

May 23, 2023May 24, 2023

Were you Misclassified by Nike as a Temporary Office Workers?

As recently reported by The Guardian, the iconic sneaker brand Nike may be liable for over $530 million dollars in taxes and fines for misclassifying its temporary office workers as independent contractors. Nike’s purported misclassification of temporary office workers includes – but is not limited to — people hired by Nike to do business consulting, T-shirt graphics, photography and event planning.

In addition to avoiding taxes, companies like Nike may classify workers as independent contractors to evade billions in overtime, paid time off, restricted stock options, retirement plan contributions and healthcare. Thus, a finding that temporary office workers are actually employees and not independent contractors raises a separate and equally important issue: did Nike pay these temporary office workers overtime wages for the hours they worked over 40 in a work week? The answer to the question undoubtedly is “no.” Because it classified these temporary office workers as independent contractors, then Nike could use that independent contractor classification to wrongfully withhold overtime wages and benefits.

According to The Guardian, a report on Nike’s classification of temporary office workers warns “Employers who are found to have misclassified workers as freelancers are also potentially liable for other potential costs,” including unpaid overtime, among other things. In addition, the report also notes that Nike could be subject to class-action lawsuits for unpaid overtime and other benefits.

Shavitz Law Group handles lawsuits where companies misclassify workers as independent contractors. If Nike – or another company – misclassified you or someone you know as an independent contractor contact Shavitz Law Group to learn more about your legal rights.

May 10, 2023May 10, 2023

Equal Pay for Equal Work? Know Your Rights.

It may be hard to believe, but in 2022, women in the United States made only 78 cents, on average, for every dollar paid to their male counterparts. That actually is a drop from 80 cents, which was the average for a number of preceding years. This gender pay gap is even worse when comparing Black and Hispanic female workers to their white male colleagues (69.5 cents and 64.1 cents, respectively).

These stark discrepancies produce staggering financial inequalities over time. Moreover, these differences in pay persist at all levels of education and economic background. That is, women are earning less than men in every sector of the job market, from hourly fast-food workers to high-powered financial analysts.

Female employees have the law on their side. The Equal Pay Act (EPA) is designed to address pay disparities between men and women who performed similar work. The EPA requires “equal pay for equal work.” The EPA covers all elements of an employee’s compensation, including base salary, overtime, bonuses, stock options, profit sharing, and benefits.

The first step to bringing EPA claims is demonstrating the discrepancy between the pay for women and men performing the same work. Fortunately, many state laws and local ordinances require pay transparency. As of early 2023, these states have enacted legislation addressing salary range disclosures: California, Connecticut, Maryland, Nevada, New York, Rhode Island, and Washington. In addition, some Ohio, New York, and New Jersey localities have also enacted similar legislation. While these laws may vary in their details, they generally all require employers to disclose wage rates and salary ranges upon request by a job candidate or employee. If you are not in an area that requires pay transparency and believe that you are earning less than your male co-workers performing the same work, then you might simply ask the male colleagues who you trust to share this information with you. And, if you cannot confirm but have a well-founded belief that your pay is unequal, an attorney can help investigate potential EPA claims.

Once the discrepancy in pay can be established, much of EPA litigation focuses on the equal work element: how does an employee establish that she performed the same job as a man? Under the EPA, “equal work” means jobs that require equal skill, effort, and responsibility and that are performed under similar working conditions (and in the same type of work location). The jobs do not have to be identical, but they must be substantially equal. It is the content and duties of the job, not the job title or the employer’s job description, that controls.

An employee who succeeds on an EPA claim is entitled to her lost wages (meaning the difference between her pay and that of her male co-workers) for the two- or three-year statute of limitations period. If her employer cannot establish that it acted in good faith (meaning that it had reasonable grounds for believing that it was not violating the law), she will receive liquidated (i.e., double) damages in an amount equal to the lost wages. The EPA also requires the employer to pay the successful employee’s attorney’s fees, which drives many of these cases. Importantly, the EPA allows female workers to bring a suit collectively in a class action.

At Shavitz Law Group, we stand up for the rights of our clients by ensuring that their voices are heard. If you believe you may be a victim of pay discrimination, call us today at (800) 616-4000.

February 3, 2023February 3, 2023

Engineers: Don’t Let the Title Fool You

Don’t assume because your title includes “engineer” — or even if you have a degree in engineering – that you are not entitled to overtime for all of those long hours you work. Engineering is a vast field and encompasses many positions, some of which are overtime-eligible.

If you are a “level one” or “entry level” engineer, your job may not require you to use the type of specialized engineering skills which would exempt you from overtime. For example, if your job entails primarily assisting a lead engineer on a project, or fielding questions from in-house or from clients or customers, or if you are usually doing CAD, then you may be entitled to overtime regardless of your engineering title.

Similarly, if you have a degree in engineering but your job duties do not require you to use the advanced knowledge associated with that degree, then you also may be entitled to overtime. By way of illustration, if you are a Professional Engineer but your job does not require you to use that skill set or your PE license, then you may be overtime eligible.

And, if you are an engineer who happens to be classified as non-exempt (eligible for overtime), then you are entitled to overtime for all of your hours worked – including those hours worked “off-the-clock” (i.e., unreported), whether at the office, in the field, or at home.

As you can see, there are a variety of scenarios where engineers may be entitled to overtime. If you are uncertain of your status, give us a call so we can evaluate your situation based upon your duties and job requirements.

August 9, 2021August 9, 2021

Employers Rethink Mandatory Arbitration

Recently, there has been an important trend in employment law: some employers are no longer requiring there employees to agree to mandatory arbitration. This change has several important benefits for employees. One, employees get to bring their cases in court, where they have the right to a jury (this is not the case in arbitration). Two, most arbitration agreements contain a class waiver, which means that employees have to bring their claims in arbitration individually and cannot sue their employer in a class or collective action. In court, employees can pool their resources and seek relief as a group in a class or collective action.

There are a few takeaways here:

• If employees already have signed arbitration agreements, they should check with their employer to see if the agreements are still in effect.
• If an employer is still using and enforcing arbitration agreements, employees can still challenge their validity and enforceability.
• If the employer’s arbitration agreement is valid and enforceable, employees can still pursue their claims in arbitration. Even if there is a class waiver, employers sometimes will not enforce it if faced with multiple individual claims which it must defend.

Shavitz Law Group is here to help. If you have questions about whether your employer is violating federal requirements, or if you have any other employment concerns, please do not hesitate to call us for a free consultation at (800) 616-4000, or visit us at www.shavitzlaw.com for a free, no obligation review of your circumstances and consultation regarding your rights.

YOU EARNED IT, NOW LETS GO GET IT.

Gregg Shavitz, Shavitz Law Group, 951 Yamato Rd Ste 285, Boca Raton, FL and 800 3rd Ave, Suite 2800, New York, NY. Lawyers licensed in states including FL, NY, NJ, and TX. The choice of a lawyer is an important decision and should not be based on advertisements alone.

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March 26, 2021March 26, 2021

More Salaried “Managers” Are Eligible for Overtime

The common misconception that all salaried employees are not eligible for overtime is a hard one to overcome. Two factors determine whether a salaried manager is entitled to overtime: (1) the amount of the salary; and (2) the primary duties. Focusing on the first requirement – called the salary-basis test — several states raised the minimum threshold for a salaried employee to be eligible for overtime, effective 2021. Currently the federal minimum salary level is $35,568 annually. That means that “managers” making less than this amount satisfy the salary-basis test threshold and may be eligible for overtime, depending on their duties.

The Biden administration is seeking to raise this minimum threshold, which would affect workers nationwide. However, several states have raised the minimum threshold on their own, including Alaska, California, Colorado, Maine, New York, Pennsylvania, and Washington – all effective in 2021.
By increasing the salary for overtime-eligible employees, more workers are entitled to overtime. If you are a salaried employee making less than $35,568, or if you live in one of the states enumerated above, and believe that your duties are similar to those of the overtime-eligible, hourly employees with whom you work, please contact SLG.

Shavitz Law Group is here to help. If you have questions about whether your employer is violating federal requirements, or if you have any other employment concerns, please do not hesitate to call us for a free consultation at (800) 616-4000, or visit us at www.shavitzlaw.com for a free, no obligation review of your circumstances and consultation regarding your rights.

YOU EARNED IT, NOW LETS GO GET IT.

Gregg Shavitz, Shavitz Law Group, 951 Yamato Rd Ste 285, Boca Raton, FL and 800 3rd Ave, Suite 2800, New York, NY. Lawyers licensed in states including FL, NY, NJ, and TX. The choice of a lawyer is an important decision and should not be based on advertisements alone.

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March 17, 2021March 17, 2021

“Sidework” by Tipped Employees = Full Minimum Wage!

Employers typically are permitted to take a “tip-credit” for tipped employees. This allows employers to pay employees who receive tips to pay less than the federal or state mandated minimum wage. However, employers cannot take advantage of the tip credit for all work performed by tipped employees.

Employers frequently require restaurant servers to spend significant time performing “sidework” instead of waiting on customers. Examples of “sidework” include: rolling silverware; washing dishes, cooking and preparing food, cutting fruit, restocking condiments, and cleaning the restaurant. Federal courts have regularly held that when servers spend more than 20% of their time performing these tasks, they should be paid the full minimum wage of $7.25/hr. for this time and not the “tipped minimum wage” of $2.13/hr. As one court explained, “an employee who spends more than twenty percent of their hours performing non-tipped, related work, can be found to have ceased to be a tipped employee and become a dual-jobs employee such that they must be paid full minimum wage for hours spent performing those duties.” Williams v. Bob Evans Rests., LLC, 2020 U.S. Dist. LEXIS 145852, at *33-34 (W.D. Pa. Aug. 13, 2020).

If you are a tipped employee who performs “sidework” 20% or more of your working time, contact SLG.

Shavitz Law Group is here to help. If you have questions about whether your employer is violating federal requirements, or if you have any other employment concerns, please do not hesitate to call us for a free consultation at (800) 616-4000, or visit us at www.shavitzlaw.com for a free, no obligation review of your circumstances and consultation regarding your rights.

YOU EARNED IT, NOW LETS GO GET IT.

Gregg Shavitz, Shavitz Law Group, 951 Yamato Rd Ste 285, Boca Raton, FL and 800 3rd Ave, Suite 2800, New York, NY. Lawyers licensed in states including FL, NY, NJ, and TX. The choice of a lawyer is an important decision and should not be based on advertisements alone.

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February 24, 2021February 24, 2021

Mandatory Gratuities Are Not Tips, But May Be Considered Commissions

For tipped employees – one of the groups who have been disproportionately negatively impacted by COVID-19 remedial measure – the law surrounding what is considered a “tip” is critical to their compensation. There is a growing trend for restaurants, cafes, and bars to charge customers mandatory gratuities (usually around 20%), similar to service fees charged in many European countries. The question then becomes whether these mandatory gratuities are considered tips for purposes of calculating minimum wages and overtime.

In December, the Court of Appeals for the Fourth Circuit concluded that the mandatory service charges imposed by a restaurant on dining parties of six or more were not “tips” under the FLSA. The Court reversed and remanded the trial court’s determination that the FLSA’s “commissioned salesperson” overtime exemption applied, as well as the trial court’s determination that the tip pool in question was valid. Tom v. Hospitality Ventures, LLC, 2020 U.S. App. LEXIS 37074 (4th Cir. Nov. 24, 2020). Specifically, the Fourth Circuit held that: (1) the “automatic gratuities” at issue were not “tips” because the customer was not authorized to deviate from the required gratuity amount; (2) the automatic gratuities could possibly qualify as “commissions” under the Section 7(i) “retail sales” exemption; (3) even if the automatic gratuities are deemed commissions, they still must be counted as total compensation in determining whether the employer satisfies Section 7(i)’s requirement that “more than half [of the employee’s] compensation for a representative period (not less than one month) represents commissions;” and (4) an employer violates the tip credit rules by distributing tip pool proceeds to restaurant employees whose customer contact is de minimis (adopting the viewpoint expressed by the Fifth and Sixth Circuits).

While the specifics of the Court’s ruling may be technical, if you are tipped employee whose employer has gone to a mandatory service charge business model, you likely will have questions regarding the legality of that plan. The determination of this question will be on a case-by-case basis, depending on the details of the employer’s plan. Therefore, it is in your interest to contact Shavitz Law Group for a free consultation at (800) 616-4000, or visit us at www.shavitzlaw.com for a free, no obligation review of your circumstances and your rights.

February 3, 2021February 3, 2021

2021 Ushers in New State Employment Laws

Workers in America are protected by both federal and state laws. January 1, 2021 is the effective date for several state laws directly affecting workers. At least 18 states enacted laws which impact workers, including California, Colorado, Connecticut, Georgia, Hawaii, Iowa, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Nevada, New Jersey, New York, Oregon, Virginia and Washington.

Several of these new state laws address the employee/independent contractor issue. The Virginia legislature passed a law which creates a presumption that a worker is an employee unless either party proves independent contractor status under federal IRS guidelines. This presumption expressly prohibits misclassifying workers as independent contractors and places the burden on the employer to prove that a worker is not an employee. Likewise, Minnesota enacted the Freelance Worker Protection Ordinance, which requires contracts for services to be set forth in writing and provides an enforcement mechanism for failure to pay a worker as agreed upon in the contract. Iowa’s new law establishes the circumstances under which certain independent contractors are not considered employees for purposes of various laws. In Louisiana, the term “employee” is now expressly defined by law and excludes independent contractors from the definition of “employment” for the purpose of unemployment benefits.

These are just a few examples of some of the many new state laws that recently came into effect. If you have questions regarding your status as an employee or any other employment issue. Shavitz Law Group is here to help. Please do not hesitate to call us for a free consultation at (800) 616-4000, or visit us at www.shavitzlaw.com for a no obligation review of your circumstances and consultation regarding your rights.

YOU EARNED IT, NOW LET’S GO GET IT.

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January 28, 2021January 28, 2021

Minimum Wage Increases Kick Off 2021

Twenty states are raising their minimum wages in 2021. The federal minimum wage, which is regulated by the Fair Standards Labor Act, has been $7.25 since 2009. States can set their own minimum wage, which may – and often do — differ from the federal minimum wage.

Even pre-pandemic, federal and state minimum wages failed to increase sufficiently to match the rising cost of living. Although the federal minimum wage is adjusted for inflation, it is worth far less than it was 50 years ago. Moreover, the COVID-19 pandemic has worsened the plight of hourly workers. The resulting recession has directly and severely impacted the retail and restaurant sectors, in which many employees earn a minimum wage. At the same time, low income workers who have faced reduced hours struggle to afford basic living costs.

For years, labor unions and workers’ rights groups have rallied for minimum wage increases. Research demonstrates that raising the minimum wage not only helps lower income workers earn more money, but also helps to increase consumer demand, bolster productivity, and reduce employee turnover. Supporters also believe a higher minimum wage will stimulate the economy, reduce poverty and reliance on government benefits, and help improve growing income inequality.

While Washington has been slow to act, many states have stepped in by raising their minimum wage to an amount more commensurate with a “living wage,” that is, one that provides people with the ability to meet their basic needs. Below is a summary of the 2021 increases in state minimum. It should be noted that the 2021 increases do not tell the entire story. Many states have committed to raising the minimum wage incrementally to reach a living wage. For example, in 2018 the voters of Florida passed an amendment (effective 2021) which raises the minimum wage over time to $15.00 per hour.

YOU EARNED IT, NOW LET’S GO GET IT.

Alaska
2020 minimum wage: $10.19 per hour
2021 minimum wage: $10.34 per hour

Arizona
2020 minimum wage: $12 per hour
2021 minimum wage: $12.15 per hour

Arkansas
2020 minimum wage: $10 per hour
2021 minimum wage: $11 per hour

California
2020 minimum wage: $13 per hour
2021 minimum wage: $14 per hour

Colorado
2020 minimum wage: $12 per hour
2021 minimum wage: $12.32 per hour

Florida
2020 minimum wage: $8.56 per hour
2021 minimum wage: $8.65 per hour

Illinois
2020 minimum wage: $10 per hour
2021 minimum wage: $11 per hour

Maine
2020 minimum wage: $12 per hour
2021 minimum wage: $12.15 per hour

Maryland
2020 minimum wage: $11 per hour
2021 minimum wage: $11.75 per hour

Massachusetts
2020 minimum wage: $12.75 per hour
2021 minimum wage: $13.50 per hour

Minnesota
2020 minimum wage: $10 per hour
2021 minimum wage: $10.08 per hour

Missouri
2020 minimum wage: $9.45 per hour
2021 minimum wage: $10.30 per hour

Montana
2020 minimum wage: $8.65 per hour
2021 minimum wage: $8.75 per hour

New Jersey
2020 minimum wage: $11 per hour
2021 minimum wage: $12 per hour

New Mexico
2020 minimum wage: $9 per hour
2021 minimum wage: $10.50 per hour

New York
2020 minimum wage: $11.80 per hour
2021 minimum wage: $12.50 per hour

Ohio
2020 minimum wage: $8.70 per hour
2021 minimum wage: $8.80 per hou

South Dakota
2020 minimum wage: $9.30 per hour
2021 minimum wage: $9.45 per hour

Vermont
2020 minimum wage: $10.96 per hour
2021 minimum wage: $11.75 per hour

Washington
2020 minimum wage: $13.50 per hour
2021 minimum wage: $13.69 per hour

If you have questions about how minimum wage increases in 2021 could impact you — or any other employment concerns — Shavitz Law Group is here to help. Please do not hesitate to call us for a free consultation at (800) 616-4000, or visit us at www.shavitzlaw.com for a no obligation review of your circumstances and consultation regarding your rights.

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December 30, 2020December 30, 2020

What’s Up with WFH and Overtime?

Nine months into the COVID-19 pandemic, “working from home” or “WFH” is part of our everyday language. The virus seemed to come out of nowhere and forced many employers to rush into remote working arrangements. Because of this, many did not have time to prepare or to consider the legal ramifications of WFH.

With the transition to a remote workforce, the traditional 9-5 workday seems to have morphed into a 24-7 working arrangement. Personal and work life has blurred as the phone, computer and other devices constantly ping workers at all hours, with many employers expecting instantaneous responses. Remote employees, most of whom are just grateful to still be employed during the recession, often feel compelled to be available to their employers around the clock. Not surprisingly then, remote employees often report working longer hours than ever before as work blends into home life. Even more often, these employees are not paid for all hours worked, as their employers either (1) fail to properly track their time, (2) believe that the ”luxury” of working from home allows them to contact their employees at any time, but not pay for that time, or (3) simply do not understand that responding to an employer’s communications – whether via email, text, video chat, IM, or any other electronic communication platform – constitutes “work” within the meaning of the law.

To ensure they are paid all time worked, employees should record all hours on the employer’s timekeeping system. If the employer does not have a timekeeping system, or if the system does not permit an employee to enter time outside of regularly scheduled hours, the employee should then keep a record of all time worked outside of regularly scheduled hours and report that time to their employer at the end of the work week.

If your employer is refusing to pay you for all time worked – including time spent responding to communications outside of your regular shift or after normal business hours – or for any other questions regarding pay or overtime, don’t hesitate to contact Shavitz Law Group at (561) 447-8888 or visit us at www.shavitzlaw.com for a free, no obligation review of your circumstances and consultation regarding your rights.