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No Records? No Problem!

Shavitz Law Group

In its last weeks, the Trump administration adopted regulations which would make it easier for workers to be classified as independent contractors.  Those regulations never took effect. Now the Biden administration has rejected them, opting instead to keep the economic realities test. 

The proposed but not implemented regulations would have allowed employers to exempt themselves from minimum wage and overtime laws if their workers were considered independent contractors under a new test whose factors favored such a finding.  Had it passed, more workers would not have been covered by a number of laws, simply because they would not been considered employees.  Such laws would have included not only the Fair Labor Standards Act governing overtime and minimum wage, but also state laws such as workers’ compensation.  These workers also would not have been eligible for many benefits, including health insurance, and could not participate in 401k plans.

The current law which will remain in effect applies a multi-factor test to determine if a worker is an employee or an independent contractor.  In announcing the decision to keep the existing economic realities test, the administration emphasized that federal law favors giving the broadest interpretation possible to the definition of an employee.  This approach favors workers being classified as employees, thereby entitling such workers to the protections of federal law and benefits only available to employees.

If you have questions relating to the use of company-issued email or computers, or any other employment-related matter, contact Shavitz Law Group  at (800) 616-4000 or email us at [email protected].   

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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Employees’ Right to Inquire About or Claim Overtime Pay Without Retaliation

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The Fair Labor Standards Act (FLSA) is a vital piece of legislation that safeguards the rights of workers in the United States. One crucial protection offered by the FLSA is the prohibition of retaliation against employees who assert their rights to seek unpaid overtime.

Under the FLSA, employers are required to compensate eligible employees for any overtime hours worked. However, workers may have questions about how they are being paid and disputes regarding unpaid overtime can sometimes arise between employers and employees. To address this issue, the FLSA guarantees the right to seek unpaid overtime and protects employees from retaliation for asserting this right.

Retaliation can take various forms, such as termination, demotion, reduction in hours, pay cuts, or any adverse action that negatively impacts the employee’s employment status or working conditions. The FLSA’s retaliation protection covers a wide range of activities, including but not limited to filing a complaint with the Department of Labor, cooperating with an investigation, or simply requesting information about their rights from their employer. It is important to note that retaliation is illegal regardless of whether the employee’s claim for unpaid overtime is ultimately successful or not.

Employees who have faced retaliation must understand the significance of the FLSA’s protection against such actions. It empowers workers to assert their rights without fear of adverse consequences. By familiarizing themselves with the specific actions covered under anti-retaliation provision of the FLSA—such as filing a complaint, cooperating with an investigation, or seeking information, or claiming backpay for unpaid overtime within the past 3 years —employees can better protect themselves. Employees should also seek legal counsel if they believe they have experienced retaliation, as they have rights and recourse under the FLSA to ensure fair and legal treatment in the workplace.

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Were you Misclassified by Nike as a Temporary Office Workers?

Shavitz Law Group

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.

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Biden Administration Rejects Attempt to Change Independent Contractor Rules and Leaves Economic Realities Test In Place

independent-contractor-employee

In its last weeks, the Trump administration adopted regulations which would make it easier for workers to be classified as independent contractors.  Those regulations never took effect. Now the Biden administration has rejected them, opting instead to keep the economic realities test.

The proposed but not implemented regulations would have allowed employers to exempt themselves from minimum wage and overtime laws if their workers were considered independent contractors under a new test whose factors favored such a finding.  Had it passed, more workers would not have been covered by a number of laws, simply because they would not been considered employees.  Such laws would have included not only the Fair Labor Standards Act governing overtime and minimum wage, but also state laws such as workers’ compensation.  These workers also would not have been eligible for many benefits, including health insurance, and could not participate in 401k plans.

The current law which will remain in effect applies a multi-factor test to determine if a worker is an employee or an independent contractor.  In announcing the decision to keep the existing economic realities test, the administration emphasized that federal law favors giving the broadest interpretation possible to the definition of an employee.  This approach favors workers being classified as employees, thereby entitling such workers to the protections of federal law and benefits only available to employees.

If you have questions relating to the use of company-issued email or computers, or any other employment-related matter, contact Shavitz Law Group  at (800) 616-4000 or email us at [email protected].

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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Employment Myths: The Contents of Company-Issued Email Accounts are Private

It is common for employees to have company-issued email addresses and computers from their employers — which has especially been the case during the coronavirus pandemic when many employees are working from home.  This raises an important question: should an employee have an expectation of privacy when they use their company-issued computers or email addresses for personal reasons?  

Generally, the answer is no. Although employees may feel an employer’s ability to view their personal activities is a violation of their privacy, the fact is that the company-issued email address and computer are the employer’s property, and the employer has the right to monitor the activities in which an employee engages while using them.  Therefore, the employer has the right to search and review files saved, web search history and email activity from the company-issued email address and on the company-issued computer.  

Indeed, with respect to email, many employers maintain monitoring systems in their email servers to monitor employee productivity, illegal activity, or other improper uses.  Employers may also track websites visited by employees to limit the amount of non-work-related activity that occurs in their computer systems.  Some employers also implement “acceptable use policies” which specify the activities in which an employee can be engaged on company-issued computers or communications that can be sent or received in company-issued email addresses.  

Ultimately, the best practice for employees to refrain from engaging in personal tasks or communications on company computers. 

If you have questions relating to the use of company-issued email or computers, or any other employment-related matter, contact Shavitz Law Group  at (800) 616-4000 or email us at [email protected].   

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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Clarifying Extended State Statutes of Limitations on Unpaid Wage Claims

Almost every legal claim has to be asserted within a statute of limitations.  Statutes of limitations are established by state and federal legislatures and set the deadlines for filing lawsuits.  Claims for unpaid wages under the Fair Labor Standards Act, 29 USC § 201, et. seq. (FLSA) must be asserted within two years of the pay period in which the claim occurred, 29 USC § 255(a).  In a case in which an employee can show that the employer’s failure to pay overtime was “willful” — meaning that the employer either knew or showed reckless disregard as to whether his or her conduct violated the FLSA —  the statute of limitations can be extended to three years. For employees who worked in California, New Jersey or New York, the applicable state laws provide for longer statutes of limitations, allowing aggrieved workers even more time to assert their claims and potentially more damages.

In California, Labor Code Section 226 governs wage claims. This regulation allows employees to recover damages from employers who do not comply with the state’s wage payment laws.  Claims for unpaid overtime are subject to a three-year statute of limitations. However, this three-year period can be extended to four years if the employee asserts a claim for unfair business practices under California’s Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200 et seq.

For individuals employed in New York, Labor Law § 663(e) provides that claims for unpaid wages may be brought within six years of the claim accruing.  This offers all workers additional time to assert their claim and allows long term employees to recover more damages beyond the three years allocated under the FLSA.

Similarly, New Jersey extended the statute of limitations for unpaid overtime and minimum wage claims from two years to six years in August of 2018.  This change in state law means that aggrieved employees have more time to assert their claims and recover more damages beyond the FLSA’s statute of limitations.

If you feel you may have a claim for unpaid wages but are concerned the claim may be barred by the statute of limitations, please contact Shavitz Law Group today at (800) 616-4000 or visit us at www.shavitzlaw.com for a free, no obligation evaluation 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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Understanding Social Media and The Workplace

Social media has become a global phenomenon. For many people, it’s difficult to remember a time when social media was not a prevalent part of life. While most individuals use social media to stay in touch with friends and family — or to follow politics, sports and entertainment news — many use these online platforms as a way to express their opinions on various topics.

However, in doing so, many employees are not mindful that social media posts are in the public domain and that employers can use these posts for various reasons. Many companies have established social media standards of conduct, which outline statements and activities which could result in an employee being disciplined even if they are done outside the scope of employment. These include making offensive, derogatory or defamatory comments, or engaging in cyber bullying or conduct that incites violence.

Not only could an employee be disciplined for social media posts that violate company policy, but if the employee asserts a claim against the employer, online posts also can be used as evidence in litigation involving the employee. Social media posts have been used in litigation as evidence of when employees were actually working or as evidence of how employees may characterize their duties with the employer outside of the context of the litigation. Additionally, social media posts have been used as evidence of an employee’s feelings toward their employer or as evidence of alleged employee misconduct.

An employer can obtain social media posts by simply gaining access to screenshots of the postings or requesting them in discovery in litigation if the court determines they are relevant. Because of the nature of the employer and employee relationship, it is recommended that employees keep work-related social media postings to a minimum.
Shavitz Law Group is here to help. If you have questions about the use of social media evidence in employment cases, contact Shavitz Law Group 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.

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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You Can Assert Claims for Unpaid Overtime Without Records of Hours Worked

So you feel you may have a claim for unpaid wages, but then you think: “how do I prove it if I have no record of the hours I worked”? The Fair Labor Standards Act (“FLSA”), 29 USC § 201, et. seq., which governs the payment of overtime and unpaid minimum wages across the United States, puts the burden of maintaining records of the hours employees work on the employer. The regulations interpreting the statute specifically require every employer to “make, keep, and preserve such records” of employees hours worked and the wages paid to them. 29 U.S.C. § 211(c); 29 C.F.R. § 516.2. An employer cannot transfer its recordkeeping obligation to the employee.

In cases where an employer’s records of an employee’s hours worked hours may be inaccurate, incomplete, or non-existent, an FLSA plaintiff may present a “good faith estimate” of the hours he or she worked, from which his or her damages can be determined. The burden then remains with the employer to provide evidence of the precise amount of work the employee performed, or evidence to negate the reasonableness of the evidence the Plaintiff asserted. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946). If the employer fails to produce such evidence, the court may then award damages to the employee based on the employee’s good faith estimate. Because of the remedial nature of the FLSA, Court’s are unwilling to relieve employers of their duty to maintain records of the hours employees work, and do not penalize employees for not maintaining such records.

Shavitz Law Group is here to help. If you feel you may have a claim for unpaid wages, but are concerned because you do not have records of the hours for which you are claiming damages, contact us today 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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Supreme Court ruling backs LGBT Workers

In a landmark decision, the United States Supreme Court ruled on Monday, June 15, 2020 that the protections of Title VII of the Civil Rights Act of 1964 (“Title VII”) protects gay and transgender workers from workplace discrimination.  Title VII forbids employers from discriminating against employees on the basis of sex aswell as gender, race, color, national origin and religion.

Justice Neil Gorsuch authored the opinion, and explained that “[t]he only question before [the Court] is whether an employer who fires someone for being homosexual or transgender has discharged or otherwise discriminated against that individual because of such individual’s sex.” In concluding that such an action would be discrimination, Justice Gorsuch explained that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”  He went on to explain that “[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.”  Therefore, “Title VII, which prohibits discrimination based on sex,should be understood to include sexual orientation and gender identity” and “[a]nemployer who fires an individual merely for being gay or transgender defies the law.”

Until this decision, it was legal in over 25 states to terminate employees for being gay, bisexual or transgender.  Now, members of the LGBT community will benefit from the same protections as all other employees in the workplace.

The case is Bostoc v. Clayton County, Georgia. The complete opinion can be found at the following link: https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf .

If you want to learn about your rights, please contact The Shavitz Law Group at [email protected] or at 800-616-4000 for a free consultation. We would be happy to assist you in a free consultation to discuss your employment concerns.

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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Should You Be Paid for That Break?

Tired of unpaid breaks

Tired of unpaid breaksThe Fair Labor Standards Act (“FLSA”), and many state wage laws, require employers to provide non-exempt employees with a meal break. A bona fide meal break under the FLSA must be for a period of more than 20 minutes, and the employee must be “completely relieved of duty” during the break for the employer to not have to pay the employee for that time.

Many employees are not completely relieved of their duties while on break, because they are required to take their lunch breaks at their work stations.  For example, a receptionist required to eat at their workstation to answer the phone in case it rings, or a security guard who stays at their post keeping watch, but taking a few minutes to eat while keeping watch, would not be “completely relieved of duty” and should be compensated for having to be available for work during their meal breaks.

A meal break is different from a rest break, which is less than 20 minutes in duration and is compensable. An employer cannot provide an employee with two separate 15-minute rest breaks but then combine the two breaks and contend the employee took a 30-minute meal break, and therefore should not be compensated. If the employee takes a break of twenty minutes or less, the time remains compensable.   In essence, smoking breaks (i.e. short duration breaks of less than 20 minutes) as they are termed are not deductible but are just part of the normal workday and that time has to be paid time.

If you are one of the many employees who have lost wages due to unpaid and untaken breaks, we can help. The law requires employers who violate federal wage law to pay the employees’ attorneys’ fees and costs, so we can represent you without any costs or fees paid by you. Call us today at (800) 616-4000 for a free consultation.

YOU EARNED IT, NOW LETS GO GET IT.

Gregg Shavitz, Shavitz Law Group, 951 Yamato Rd Ste 285, Boca Raton, FL and 830 3rd Ave, Floor 5, 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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