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New York Employment Law Blog

When should on-call employees be paid for their time?

Various industries use on-call employees to fill gaps in staffing needs. Being an on-call employee might seem like a pretty sweet deal. You can sit around and wait to see if you are going to get called in to work. After all, if your employer wants you to wait around, you'll get paid, right?

The answer to this question is that only some on-call employees will get paid for their time. There are several points that can help to determine whether the period you are on-call will be paid or unpaid. In some instances, you might have to fight for your rightful on-call pay. Here are some points you need to know about this work status:

Volunteering by public employees must follow FLSA rules

New York public employees covered by the Fair Labor Standards Act's wage and hour rules should be careful that any volunteer work they undertake for their employer doesn't run afoul of those guidelines. Many volunteer situations are not allowed under FLSA's rules for severance, commissions and bonuses. The activities not included could result in the employee volunteer's organization being cited for a failure to pay for work performed. This is intended for the protection of both workers and employers.

Wage and hour regulations are specific and strongly enforced by the FLSA. Employees are permitted to volunteer for the organization that employs them, but experts recommend that extra care be taken to ensure that the volunteer activity qualifies as being done for civic, charitable or humanitarian reasons. In fact, it is required that such volunteers meet the rules for public employees and for employees of private companies.

Women in STEM careers face greater discrimination

Careers in science, technology, engineering and math frequently offer high-paying career opportunities to people in New York. Women and minorities, however, experience high levels of harassment and discrimination in these occupations according to a survey prepared by the Pew Research Center. Half of women in STEM jobs reported gender discrimination. Drawing upon data provided by some large technology companies, the Pew report found low levels of employment among blacks and Hispanics in STEM positions compared to other employment sectors.

After researchers reviewed the survey responses from 4,914 adults, they concluded that women reported more discrimination when they worked for majority-male organizations, used computers or held a postgraduate degree. According to the report, gender discrimination and sexual harassment created barriers to career success for women. A lower percentage of men recognized sexual harassment as a problem in STEM workplaces than their female colleagues.

Is it legal in New York to force employees to work off the clock?

For workers making an hourly wage instead of a salary, overtime pay can be a major boon. Extra hours require at least 150 percent their usual rate of pay, making time worked beyond 40 hours in any given pay period more lucrative. Unfortunately, due to that increased cost, many employers try to avoid paying overtime wages.

Carefully monitoring employee time clock records to ensure no one goes over 40 hours in a week is a perfectly legal way of reducing or completely avoiding overtime pay. Asking staff to clock out and then return to work off the clock, however, is not. That is a form of wage theft, and it is illegal.

Man wins trial against employer for whistleblower retaliation

New York workers who engage in whistleblowing are protected under federal laws. When the workers report their employers for engaging in illegal behavior, the companies are prohibited from retaliating against them for engaging in protected activities. Retaliation may include any negative job action, including termination. It might also include filing defamation lawsuits against whistleblowers if the purpose is retaliatory.

In one recent case that was filed by the Occupational Safety and Health Administration on behalf of a New York construction worker, the worker was awarded both compensatory and punitive damages by a jury at trial. The case involved a worker who reported Champagne Demolition LLC for illegally disposing of asbestos that the company had been hired to remove from a high school in Alexandria Bay, New York.

Study implies age discrimination in social media job advertising

Older workers in New York and around the country are protected against discrimination in the workplace by the Age Discrimination in Employment Act. The 1967 federal law covers workers who are 40 years of age or older, but a recent investigation by the nonprofit group ProPublica and the New York Times suggests that some of the nation's largest companies are advertising their job openings on social media platforms like Facebook to avoid older candidates and attract younger applicants.

Social media allows advertisers to target specific audiences based on factors including gender and age, and some labor advocates say that these practices are discriminatory and illegal when they are used to exclude certain types of job candidates. However, a senior Facebook executive said that targeted recruitment efforts on social media are no different than advertising job openings on television shows or in magazines that skew to an older or younger demographic.

Independent contractor status at issue in taxi driver case

Increasing numbers of people in New York find themselves working within the gig economy. Companies almost always classify them as independent contractors, which prevents them from enjoying the rights of employees. A case on the West Coast, however, presented an example of an appeals court overturning a lower court's ruling that a taxi cab driver was an independent contractor.

The appeals court sent the case back to district court for reconsideration because multiple factors in the work relationship pointed toward an employer-employee relationship. Even though the contract declared that he was an independent contractor, the court did not find that label sufficient to support the designation. The man had no control over the contents of the contract and had to sign it in order to work.

Senator from New York supports bill addressing sexual harassment

Senator Kirsten Gillibrand is part of the bipartisan group proposing a bill called Ending Forced Arbitration of Sexual Harassment. It would create a legal limitation on the use of arbitration agreements to cover up allegations of sexual harassment in workplaces. The bill calls for the exclusion of sexual harassment and gender discrimination from the terms of employment agreements that mandate arbitration as the only method for dispute resolution between workers and employers.

Although many workers publicly advance claims against employers in court, private arbitration determines the course of other complaints. This happens because some employees sign agreements as a condition of employment that require them to handle workplace disputes out of court.

Qualifying for FMLA could protect workers from retaliation

Managers and supervisors in New York should avoid criticizing employees for taking time off for medical treatment and recovery. Even if a worker does not officially take a leave under the terms of the Family Medical Leave Act, time off that could have qualified as FMLA leave could still entitle an employee to protection from retaliation or interference.

One court has already allowed an employee's complaint of interference to proceed as a possible violation of the FMLA. Although the female plaintiff had never formally asked for an FMLA leave and the employer had not granted time off under its provisions, she still received time off to treat arthritis in both of her hands.

4 tips for victims of wage theft

When you put in endless hours, along with blood, sweat and tears, you expect to receive the compensation you are due. Furthermore, you expect your employer to deal with you honestly. But, that does not always happen. Not all employers look out for their staff. In fact, some of them actually steal from their employees.

If you have been a victim of wage theft in New York, keep in mind that you have options and rights. The last thing you should do is stand idly by while your boss makes even more money off of your work or anyone else's. Find out what you should do if your employer is stealing from you.

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