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How to Handle a wage - New York County Lawyers' …

N Y C L A - C L E INs tIt u tEThis program has been approved by the Board of Continuing Legal Education of the Supreme Court of New Jersey for 3hours of total CLE credit. Of these, 1 qualify as hours of credit for Ethics/Professionalism, and 0 qualify as hours of credittoward certification in civil trial law, criminal trial law, workers compensation law and/or matrimonial to Ha n d l e a wag e a n d Ho u r Ca s ePrepared in connection with a Continuing Legal Education course presented at new york County Lawyers Association, 14 Vesey Street, new york , NY presented on Thursday, January 31, o g rA m ChA Ir: Louis Pechman, Berke-Weiss & Pechman LLPPr o g rA m FA Cu L t Y:Terri Gerstein, Labor Bureau Chief, new york State Attorney General s OfficeJustin Swartz, Outten & Golden LLPNoel Tripp, Jackson Lewis3 TRANSITIONAL & NON-TRANSITIONAL MCLE CREDITS.

Information Regarding CLE Credits and Certification How to Handle a Wage and Hour Case . Thursday, January 31, 2013 6:00 PM to 9:00 PM . The New York State CLE Board Regulations require all …

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Transcription of How to Handle a wage - New York County Lawyers' …

1 N Y C L A - C L E INs tIt u tEThis program has been approved by the Board of Continuing Legal Education of the Supreme Court of New Jersey for 3hours of total CLE credit. Of these, 1 qualify as hours of credit for Ethics/Professionalism, and 0 qualify as hours of credittoward certification in civil trial law, criminal trial law, workers compensation law and/or matrimonial to Ha n d l e a wag e a n d Ho u r Ca s ePrepared in connection with a Continuing Legal Education course presented at new york County Lawyers Association, 14 Vesey Street, new york , NY presented on Thursday, January 31, o g rA m ChA Ir: Louis Pechman, Berke-Weiss & Pechman LLPPr o g rA m FA Cu L t Y:Terri Gerstein, Labor Bureau Chief, new york State Attorney General s OfficeJustin Swartz, Outten & Golden LLPNoel Tripp, Jackson Lewis3 TRANSITIONAL & NON-TRANSITIONAL MCLE CREDITS.

2 This course has been approved in accordance with the requirements of the new york State Continuing Legal Education Board for a maximum of 3 Transitional & Non-Transitional credit hours: 1 Skills; 1 Ethics; 1PP/LPM Information Regarding CLE Credits and Certification How to Handle a wage and Hour Case Thursday, January 31, 2013 6:00 PM to 9:00 PM The new york State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution. i. You must sign-in and note the time of arrival to receive your course materials and receive MCLE credit. The time will be verified by the Program Assistant. ii. You will receive your MCLE certificate as you exit the room at the end of the course.

3 The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium. iii. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate. iv. Please note: We can only certify MCLE credit for the actual time you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving. The time will be verified by the Program Assistant. Again, if it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week.

4 V. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly, unless you can provide verification of course completion. Your certificate will be mailed to you within one week. Thank you for choosing NYCLA as your CLE provider! new york County Lawyers Association Continuing Legal Education Institute 14 Vesey Street, new york , 10007 (212) 267-6646 How to Handle a wage and Hour Case Thursday, January 31, 2013 6:00 PM to 9:00 PM AGENDA Program Chair: Louis Pechman, Esq. Berke-Weiss & Pechman LLP Program Faculty: Terri Gerstein, NYS Office of Attorney General Louis Pechman, Berke-Weiss & Pechman LLP Justin Swartz, Outten & Golden LLP; Noel P.

5 Tripp, Jackson Lewis LLP 5:30PM 6:00PM Registration 6:00PM - 6:10PM Introductions and Announcements 6:10PM 7:20PM Presentations and Discussion 7:20PM 7:30PM BREAK 7:30 PM 8:45 PM Presentations and Discussion Cont. 8:45 PM 9:00 PM Questions and Answers How to Handle a wage and Hour Case Thursday, January 31, 2013 6:00 PM to 9:00 PM Table of Contents Program Chair: Louis Pechman, Berke-Weiss & Pechman LLP Faculty: Terri Gerstein, Labor Bureau Chief, new york State Attorney General s Office; Justin Swartz, Outten & Golden LLP; Noel Tripp, Jackson Lewis LLP Section Outline 1 NY Labor Law Article 6 wage Payment 2 NY Labor Law Article 7 (specific sections) 3 NY Labor Law Article 8 Prevailing wage 4 NY Labor Law Article 19 Minimum wage Act 5 State of new york Department of Labor Minimum wage Order for Building Services Industry 6 State of new york Department of Labor Minimum wage Order for Farm Workers 7 Part 146 Hospitality Industry Minimum wage Order 8 State of new york Department of Labor Minimum wage Order for Miscellaneous Industries and Occupations 9 Issues in wage and Hour Litigation: The Defendant s Perspective 10 By Felice B.

6 Ekelman Esq. and Noel P. Tripp, Esq. 1 Overview of new york State wage and Hour Laws Contents 1. Employment Relationship 2. State Minimum wage Rate 3. Exemptions to Coverage 4. Overtime Provisions 5. Allowances for Tips, Meals, Lodging 6. Tip Regulations 7. Split Shift & Spread of Hours 8. Call-in Pay 9. Required Uniforms and Uniform Maintenance 10. Unlawful Deductions from Wages 11. Frequency of Payments 12. Notices of Pay Rate & wage Statements 13. Prohibition against Retaliation 14. Powers of the Commissioner of Labor 15. Burden-Shifting in the Absence of Employer Records 16. Comparison Chart 1. Employment Relationship: "Employee," "Employer," and Employer Liability (a) new york Labor Law Under new york labor laws and regulations, the definitions of both "employee" and "employer" are short and simple: Labor Law Article 19, the Minimum wage Act defines an employee as "any individual employed or permitted to work by an employer in any occupation," and an employer as "any individual, partnership, association, corporation, business trust, legal representative, or any organized group of persons acting as employer.

7 " The Miscellaneous wage Order, a set of labor regulations promulgated pursuant to Article 19, which applies to all industries not addressed in other wage Orders, defines an employee as "any individual employed, suffered or permitted to work by an employer" subject to certain exemptions. 12 NYCRR (a).. Given these expansive definitions, most employees in the state are entitled to minimum wage and overtime pay, although there are specific exemptions contained in new york Labor Law 651(5), in various wage Orders, and in court interpretations explained later in this section. 2 (b) Federal Fair Labor Standards Act The Fair Labor Standards Act ("FLSA") defines "employer" to include "any person acting directly or indirectly in the interest of an employer in relation to an employee," 29 203(d), which covers not only corporate employers, but also individual corporate officers or others with power over employees.

8 (c) Individual Liability Both state and federal law impose liability on individual owners or employers for violations of wage and hour laws. Liability depends upon the extent of the individual s involvement in the day-to-day aspects of the business and knowledge about the wage and hour violations. There is no need to pierce the corporate veil. The Labor Law, like the federal FLSA, defines "employ[]" to include "permit[] or suffer[] to work." See Labor Law 2(7); compare 29 203(g) ("`Employ' includes suffer or permit to work"). In addition, the Labor Law as a whole, its Article 19 (the Minimum wage Act establishing required minimums) and its Article 6 (requiring payment of earned wages as promised, even at levels above statutory minimums) all define "employer" broadly, clearly including individuals.

9 The general definition is "the person employing any such mechanic, workingman or laborer, whether the owner, proprietor, agent, superintendent, foreman or other subordinate," see Labor Law 2(6); the Article 19 definition "includes any individual, partnership, association, or any organized group of persons acting as employer," see 651(6); and the Article 6 definition "includes any person, or association employing any individual," see 190(3). Because complaints often allege violation of both FLSA and the Labor Law (both Article 19 and Article 6) and are brought in federal court with pendent jurisdiction over the Labor Law claims, there is more federal-court than state-court interpretation of the Labor Law, and in light of the similar definitions of "employ," many federal cases give both statutes the same construction.

10 See, , Zheng v. Liberty Apparel Co., 355 61, 78 (2d Cir. 2003); Chen v. Street Beat Sportswear, Inc., 364 269, 278 ( 2005) (collecting cases). For employer status, the federal cases generally recognize an "economic reality" test, that is, a worker is "employed" by the entity or entities, and/or person or persons, who in economic reality suffer or permit work to be done, as shown by factors having to do with who controls the work. See, , Zheng, 355 at 66-76; Herman v. RSR Sec. Servs., Ltd., 172 132, 139 (2d Cir. 1999); Brock v. Superior Care, Inc., 840 1054, 1058-59 (2d Cir. 1988). In addition, the federal cases specifically recognize that under this test, an individual corporate owner or officer (as well as the corporation) can be a statutory employer and found personally liable for violations if in economic reality he or she controls the work, as shown by such factors as power to hire and fire, supervision and control of work schedules or conditions of employment, and determination of the rate and method of payment.


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