Articles Posted in Wage and Hour

Women who have been in the workforce for any amount of time are likely familiar with the gender pay gap. Essentially, the problem is that women are paid less than equally qualified men who perform the same job duties. Under New York and federal laws, this is illegal, but companies may try to get around the discrimination laws.One of the ways employers try to get around the New York sex discrimination laws is to base employee pay decisions on what the potential employee had previously been making at their last position. This used to be a permissible way of determining what an employee should be paid, or the size of a raise or bonus, until October of this year, when New York lawmakers prohibited the practice. This is because it is no secret that the wages of women have been artificially and improperly depressed for decades, and basing future decisions on the sexist policies of the past perpetuates sex discrimination.

Despite the efforts of lawmakers, the gender wage gap still exists, and by some accounts it is not necessarily getting better. That being said, New York has one of the lowest gender wage gaps in the country, at 11%.

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The gender wage gap in New York City is very real, with women making on average between $12,000 and $15,000 less than their male counterparts who perform the same jobs. And while New York City employs a facially gender-neutral pay scale, women end up with lower salaries because they are placed in the lower paying positions, or the positions that offer less influence. The result is a 17-18% gender wage gap.The reasons for the wage gap are archaic and relate to the misconception that women are “supplemental” wage earners whose primary role is to raise children. However, recent studies considering gender productivity among employees do not support using gender as a proxy for productivity or reliability in the workplace, which is a form of New York gender discrimination.

Despite the lack of evidence supporting the gender wage gap, employers have been able to get away with the practice of offering women lower salaries for years. However, according to a recent news report, legislation signed by Mayor de Blasio will reduce an employer’s ability to perpetuate the gender wage gap.

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Sexual harassment remains a major problem in workplaces across the country, and workers in nearly every sector of the economy are fighting back in courtrooms and in public discourse. This includes jobs in which, unfortunately, some people seem to see sexual harassment—and worse—as a sort of occupational hazard. Several recent court cases involving exotic dancers, including one from a Manhattan federal court, offer some hope that this environment is changing for the better. The particular circumstances of this sort of workplace raises multiple legal questions in addition to whether unlawful sexual harassment has occurred. The recent court cases also involved disputes over whether the plaintiffs were employees of the clubs, or independent contractors not subject to the protection of employment statutes like Title VII.

The nature of exotic dancing, more commonly known as stripping, makes it subject to certain prejudices in our rather sex-averse society. Because exotic dancers are involved in a sexually-oriented business, asserting claims for sexual harassment can prove even more difficult than in other workplaces. They are entitled, however, to the same protections against sexual harassment and other gender-based discrimination as any other worker. This includes sexual harassment by supervisors, managers, co-workers, and customers.

In addition to societal prejudices against their line of work, exotic dancers face the challenge of establishing an employment relationship with the clubs where they work. Many clubs attempt to classify dancers as independent contractors rather than employees. Their pay might come exclusively from cash obtained from customers, with the club providing no wages or salary. At the same time, however, the club or its employees might have authority to assign shifts and to tell dancers when and where to work. More and more courts are ruling that this degree of control by a club creates an employment relationship.
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An organization of New York nail salons filed a lawsuit in September 2015 to challenge a state regulation requiring nail salons to obtain wage bonds. Korean Am. Nail Salon Assn. of N.Y. Inc. v. Cuomo, et al., No. 15-4582, verif. petition (N.Y. Sup. Ct., Albany Co., Sep. 16, 2015) (the “Lawsuit”). The New York Department of State (DOS) adopted a rule on an emergency basis in May 2015 in response to a series of New York Times reports about alleged mistreatment of nail salon workers. The lawsuit claimed that the rule was “arbitrary and capricious,” Lawsuit at 19; that it lacked statutory authority; and that it violated the plaintiff’s rights under the Due Process and Equal Protection Clauses of the U.S. and New York Constitutions. A judge in Albany dismissed the lawsuit in early December. 2015 N.Y. Slip Op. 25412 (the “Order”).

The New York Times published a series of articles in May 2015, alleging that nail salon employees “are routinely underpaid and exploited, and endure ethnic bias and other abuse.” Shortly afterwards, New York Governor Andrew Cuomo ordered an investigation of the state’s approximately 5,000 nail salons, about 40 percent of which are located in New York City. The investigation reportedly found 116 violations of state wage law at 29 salons.

The DOS enacted a new rule “relating to insurance and bond requirements” on May 18, 2015. 6/3/15 N.Y. St. Reg. DOS-22-15-00010-E. It cited its authority to make rules affecting nail salons “in order to ensure the health, safety and welfare of the public.” N.Y. Exec. L. § 91; N.Y. Gen. Bus. L. §§ 402(5), 404. Under the new rule, nail salons must maintain liability coverage for wages owed to employees of at least $25,000 for salons with four or fewer employees, and up to a minimum of $125,000 for salons with 26 or more employees. 19 NYCRR § 160.9. Nail salons may obtain this coverage through a corporate surety bond, various forms of liability insurance, or combinations thereof.

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A pair of Queens hair and nail salon businesses that allegedly committed multiple acts that violated New York’s labor laws, agreed to pay several of their workers as part of their settlements with the state’s Attorney General, the Queens Chronicle reported.

One settlement closed a labor law violation action the Attorney General had launched in Queens County against Tatyana Enterprises, the owner of a hair salon in Jackson Heights. In the Tatyana case, the Attorney General was pursuing the employer for its illegal response to a workplace injury that occurred in the salon in the summer of 2011.

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This past June, the New York City Council passed a bill that requires, for the first time, the city’s 200+ car washes to get licenses to operate, Politico New York reported. The bill, which passed 43-7, will also put into place checks to ensure that the city’s car washes comply with all relevant labor and environmental laws. The new requirements would seek to stop the problem of wage theft in the car wash industry, where some workers have been found in the past making as little as half of what the law sets as the required minimum.

Two years ago, current speaker of the city council, Melissa Mark-Viverito, introduced the bill to enhance oversight of the city’s car wash industry. The bill targeted the car wash industry because it had a long track record of flouting labor laws. In 2008, the New York Times reported on a state Labor Department investigation, which found that almost one-half of the state’s car washes and nearly 80% of the car washes in New York City did not follow the law when it came to paying the minimum wage or overtime. That investigation found that some workers made as little as $3 per hour, and some worked as much as 72 hours in a week without receiving any time-and-a-half pay for their overtime.

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Two manicurists who worked at salons in Manhattan’s Upper East Side sued their employers for numerous labor law violations relating to the manner in which they were paid, Fortune reported. The workers, in their lawsuit, accused the employers of paying sub-minimum wages and not paying overtime, among other violations. The claims allege a pattern that went on for more than half a decade.

One of the manicurists, Blanca Fernandez, worked for a chain of nail salons located on First Avenue in the Upper East Side from 2007 to 2013. During that time, the employer paid the manicurist $60 per day for her work. Fernandez’s work days usually lasted around 10 and one-half hours. In other words, Fernandez received only around $5.70 per hour for her work, even though the applicable minimum wage in New York from 2007 to 2013 ranged between $7.15 per hour to $7.25 per hour.

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New York City is home to some of the largest law firms in the country, who handle some of its most complex, elaborate, and document-intensive cases. A recent 2d Circuit Court of Appeals case could have a dramatic impact on how law firms handle contract attorneys who are engaged in large document review projects. The 2d Circuit decision, as reported recently by the New York Law Journal, could also force “industry-wide changes” regarding which attorney employees are (or are not) doing work constituting the practice of law and, therefore, may (or may not) be exempt from receiving overtime pay under the Fair Labor Standards Act.

The events leading to the lawsuit related to David Lola’s employment as a document review attorney with Tower Legal Staffing, Inc. Lola worked in North Carolina on a project in which Tower had contracted with the New York law firm of Skadden, Arps, Slate, Meagher & Flom, LLP to provide certain document review services as part of a federal product liability case Skadden was litigating in Ohio.

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Two chains of New York City area car washes likely reaped some short-term benefit by paying their employees sub-minimum wages, but the practice proved costly for them in the end. An extensive investigation by the New York Attorney General into the businesses’ labor practices yielded settlements totaling $3.9 million, according to a report.

The investigation targeted the practices of the car wash chains from 2006-2012. The two chains that were the subject of the state’s investigation were interrelated businesses owned by the same three men, and they comprised 21 car wash locations across the New York City area.

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New York City, as the headquarters of the United Nations (UN), hosts diplomats and diplomatic staff from all over the world. Diplomatic officials are afforded certain accommodations, as many Manhattan residents know, through the doctrine of diplomatic immunity. People acting in an official diplomatic or consular capacity on behalf of their country’s government may not be subjected to civil, criminal, or administrative proceedings in the host country, with some exceptions. Under the doctrine of sovereign immunity, governments, heads of state, and certain other officials are generally immune from civil lawsuits and other proceedings. Multiple stories have surfaced in recent years of diplomatic and consular officials accused of sexual harassment and other misconduct. Courts have found, in some cases, that diplomatic immunity does not protect officials from civil lawsuits under such circumstances. Sovereign immunity, however, appears to remain a barrier to suit.

A recent report by Business Standard, an Indian news publication, found at least three incidents since 2010 involving allegations of sexual harassment and labor law violations by domestic workers against Indian diplomats. The “common thread” linking these incidents, the report stated, was the United States and its laws protecting workers. One case involved a housekeeper’s civil lawsuit accusing an Indian consular official of unlawful employment practices and sexual harassment. Bhardwaj v. Dayal, et al, No. 1:11-cv-04170, complaint (S.D.N.Y., Jun. 20, 2011). The plaintiff removed the sexual harassment allegations from an amended complaint, and the parties settled the suit in mid-2012.

In numerous New York cases, courts have rejected claims of diplomatic immunity in lawsuits related to sexual harassment. Perhaps the most famous recent case involving this defense was not a sexual harassment lawsuit, but rather a civil lawsuit arising from an alleged sexual assault, Diallo v. Strauss-Kahn, No. 207065-2011, complaint (N.Y. Sup. Ct., Bronx Co., Aug. 8, 2011). The court held that the defendant, the former head of the International Monetary Fund (IMF), lost any claim to immunity when he resigned his position with the IMF. It also noted that immunity generally might not apply to acts that are unrelated to official consular duties. That case was settled in late 2012.

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