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Jun 24

Chipotle Lawsuit Conditional Certification Granted

Posted by: Brian Schaffer

On June 20, 2013, the U.S. District Court (S.D.N.Y.) received oral arguments on behalf of Chipotle Mexican Grill, Inc (“Defendant”) and its Apprentice/Assistant Manager employees (“Plaintiffs”) located in eight states regarding a motion for Conditional Certification of a Collective Action pursuant to the Fair Labor Standards Act (FLSA). The S.D.N.Y. granted the employees motion for Certification of Collective Action against Chipotle and authorized notice of the Collective Action to be distributed to a nation-wide class (except for those employees located in California) of prospective Plaintiffs. The Plaintiffs are seeking to recover overtime compensation as required by the FLSA and other lost wages as required by the New York Labor Law (NYLL) and Missouri Labor Law (MLL).

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Jun 17

Conde Nast Unpaid Intern Lawsuit

Posted by: Brian Schaffer

On June 13, 2013, two former interns, Lauren Ballinger and Matthew Leib (Plaintiffs) filed a class action complaint in U.S. Federal Court (S.D.N.Y.) on behalf of themselves and all others similarly situated against Conde Nast Publications and Advance Magazine Publishers (Defendants) alleging violations of the Fair Labor Standards Act (FLSA) and New York Labor Laws (NYLL) by failing to pay interns. In filing the complaint, the Plaintiffs hope to recover for lost wages.

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Jun 13

Ainsworth Lawsuit

Posted by: Brian Schaffer

On June 12, 2013, the Alycia Carrillo (“Plaintiff”) filed a complaint in U.S. Federal Court on behalf of herself and all others similarly situated that worked at The Ainsworth and Ainsworth Park (collectively, the “Ainsworth Bars”), as class representative, alleging that Paige Hospitality Group (“Defendant”) unlawfully violated the Fair Labor Standards Act (FSLA) and New York Labor Law (NYLL). The plaintiff is seeking to recover unpaid minimum wages, overtime compensation, spread of hours pay, misappropriated gratuities, misappropriated service charges, unlawful deductions, uniform-related expenses and other wages.

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Mar 27

NYC PASSES LAW REGARDING UNEMPLOYMENT DISCRIMINATION

Posted by: Brian Schaffer

On March 13, 2013, the New York City Council passed new legislation (814-A), that will prohibit employers from basing employment decisions on a job applicant’s unemployed status and prohibit employers from posting in job advertisements that current employment is a job requirement or that unemployed applicants should not apply. The law is set to take effect on June 11, 2013.

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Mar 1

RITE AID SETTLEMENT

Posted by: Brian Schaffer

A federal judge approved a settlement awarding $20.9 million to be paid to Rite Aid assistant managers and co-store managers for their overtime claims. The Rite Aid assistant managers and co-store managers were paid a set salary regardless of how many hours they worked. The lawsuit claimed that Rite Aid assistant managers and co-store managers were misclassified as exempt employees to avoid being paid overtime, therefore, they argued they should have been paid hourly and time and one half their hourly rate for the hours they worked over 40 per workweek. The settlement includes back pay, damages, attorneys’ fees and expenses.

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Feb 21

ELITE MODELING UNPAID INTERNS

Posted by: Brian Schaffer

Elite Modeling, a top modeling agency, is being sued by a former intern for allegedly failing to pay its interns overtime pay for the hours they worked in excess of 40. The intern claims that the company misclassified its interns as exempt from wage requirements and then made them work more than 40 hours a week, including weekends.

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Feb 13

CHIPOTLE OVERTIME

Posted by: Brian Schaffer

Fitapelli & Schaffer filed an amended complaint against Chipotle seeking overtime compensation on behalf of Apprentice’s nation-wide. We allege that the primary duties of an Apprentice are similar to hourly workers. To date, employees from the following states have joined the lawsuit: New York, Texas, Florida, Georgia, Kansas and Missouri.

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Feb 7

NEW YORK PREVAILING WAGES

Posted by: Brian Schaffer

A lawsuit filed against A-1 First Class Moving & Storage (“A-1 Moving”) alleges that A-1 Moving failed to pay its service employees the prevailing wage rate as set by the New York City Comptroller’s Office. The prevailing wage is the pay rate set by law for work on public works projects. The prevailing wage law covers anyone who: works in construction under a public works contract on a City-owned facility; provides building services such as security, cleaning, temporary office clerical, or food services in a City-owned building; transports fossil fuel, office furniture, rubbish or equipment in a City-owned building; or provides certain home attendant services, day care, or head-start services to New York City residents. Under New York State Labor Law, contractors and subcontractors must pay the prevailing rate of wage and supplements (fringe benefits) to all workers under a public contract.

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Jan 30

T.G.I. Fridays Lawsuit Update

Posted by: Brian Schaffer

Counsel for Defendants asked the Court to compel removal of Plaintiffs’ website (www.TGIFridayslawsuit.com) alleging the website contained false and misleading information and infringed on T.G.I. Friday’s trademark. Plaintiffs argued that the website was proper attorney advertising and would not infringe on Friday’s trademarks because the public would not be confused regarding who controlled the website. The website contains disclaimers specifically stating that, “This website is not affiliated or endorsed by TGI Fridays or tgifridays.com. This website provides information regarding a lawsuit filed against Riese Restaurants, the owner/operator of 10 TGI Fridays locations in Manhattan.” After a hearing, the Court denied Defendants’ request and allowed the website to remain active.

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Jan 17

BARNES AND NOBLE OVERTIME

Posted by: Brian Schaffer

An investigation seeks to uncover whether Barnes and Noble properly classified their Assistant Managers as exempt from the overtime provisions of the Fair Labor Standards Act and the New York Labor Laws. By classifying their Assistant Managers as exempt, Barnes and Noble paid them a set salary regardless of the amount of hours they worked. However, it is alleged that Barnes and Noble misclassified their Assistant Managers as exempt since Assistant Managers performed the same work as the hourly employees. If the allegations are correct, Assistant Managers could be entitled to recover unpaid overtime pay for the hours they worked in excess of forty per workweek, as well as liquidated damages, interest, and attorneys’ fees. Fitapelli & Schaffer have represented hundreds of employees with similar claims. If you work or have worked at Barnes and Noble as an Assistant Manager within the past 6 years, please contact the employment lawyers at Fitapelli & Schaffer to discuss your possible claims.

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Sep 14

IRS WHISTLEBLOWER SETTLEMENT

Posted by: Brian Schaffer

On September 11, 2012, Swiss banker Bradley Birkenfeld announced that the IRS will pay him $104 million as a whistleblower reward for the information he provided to the U.S. government. Under the IRS whistleblower program, informants are entitled to a percentage of the dollar amount recovered by the U.S. government when fraud is exposed. The information supplied by Birkenfeld uncovered a secretive private wealth management division of the Swiss Bank UBS. This division of UBS would help U.S. clients evade taxes by hiding their wealth overseas. Birkenfeld’s information eventually led to the recovery of a $780 million fine paid by UBS to the U.S. and the names of 35,000 taxpayers who held illegal offshore accounts, which resulted in over $5 billion dollars in back taxes, fines and penalties. The IRS whistleblower program can potentially pay big dividends to potential informants for turning over information to the U.S. government.

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Jul 25

HEARST UNPAID INTERNS WIN CONDITIONAL CERTIFICATION

Posted by: Brian Schaffer

In the recent decision of Wang v. Hearst Corporation, 2012 WL 2864524, the Court denied the defendant-employer’s motion to strike the class and collective action allegations made by the plaintiff-employees and granted the plaintiff’s cross-motion for conditional certification and court-authorized notice to potential class members pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §216(b).

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Jul 24

FLSA DECERTIFICATION DECISION

Posted by: Brian Schaffer

In a recent decision, Morano v. Intercontinental Capital Group, 2012 WL 2952893, the Court dismissed the employees’ nationwide collective action against their employer because all the plaintiffs were not “similarly situated.” The Court recommended that the employees propose workable classes and resubmit their collective action or that each individual employee bring their own lawsuit.

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Jul 12

CLASS ACTION ARBITRATION

Posted by: Brian Schaffer

A Federal Court in New York recently agreed with an Arbitrator’s award permitting the employees to seek their New York Labor Law (“NYLL”) and Fair Labor Standard Act (“FLSA”) claims on a class-wide or collective action basis, despite the arbitration agreement not expressly giving the employees this option. The employees worked as tipped, hourly food service workers at their employers’ restaurants. During their employment, the employees received a handbook with a dispute resolution policy (“DRP”) and they also received a dispute resolution agreement (“DRA”). Both the DRP and the DRA stated that all claims arising out of the employment with the restaurant, including labor law violations, must be submitted to final and binding arbitration. Also, both the DRP and the DRA did not mention anything pertaining to whether employees can bring their claims as a class or collective proceedings. In deciding this issue, the Court had to consider whether (1) the parties submitted to the Arbitrator the question of whether the agreement permitted class arbitration and (2) whether the Agreement or the law prohibited the Arbitrator from resolving the issue. The Court does not look to whether the Arbitrator correctly decided the issue, but whether the Arbitrator relied on the arbitration agreement and applicable law in making its decision.

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Jul 10

NEW YORK HOME HEALTH CARE OVERTIME

Posted by: Brian Schaffer

In the first class-wide settlement of its kind, employees of a home care agency reached an agreement with their employer to settle their overtime compensation claims. The New York State Court approved a settlement that awarded the employees $1.1 million. The employees worked as home health aides for McMillan’s Home Care Agency. The employees alleged that their employer failed to pay them overtime at one and one half times their regularly hourly rate, despite frequently working up to 60 hours per workweek. The settlement agreement also prohibits their employer from retaliating (e.g. firing) against any employee who complains about wages and hours and also required the employer to appoint an administrator to handle complaints about wages or reimbursement of expenses. According to a recent survey, overtime violations seem to be commonplace in the home health care industry. For more information regarding employees’ rights under Federal or State labor laws, please contact Fitapelli & Schaffer for a free consultation.

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Jul 2

RECRUITERS ARE ENTITLED TO OVERTIME PAY

Posted by: Brian Schaffer

In a recent case, the employees of a class action lawsuit were awarded $12.3 million to settle their overtime claims. The employees worked as health care and staffing recruiters for Maxim Healthcare Services Inc., a national health care staffing company. The employees alleged that they worked in excess of 40 hours per workweek and were not paid any overtime wages as required under various State Labor Laws and the Federal Labor Standards Act (“FLSA”). The employees’ job duties consisted of routine, administrative sales functions which were performed in accordance with corporate policies. Part of the employees’ responsibilities was to recruit potential caregivers and present qualified candidates to clients. Many employers misclassify their employees as “exempt”, meaning that they do not qualify for overtime, to save on labor costs. However, this is in violation of the FLSA, as well as numerous State Labor Laws. For more information regarding employees that are entitled to overtime, please contact Fitapelli & Schaffer for a free consultation.

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Jul 2

ENERGY COMPANY OVERTIME SETTLEMENT

Posted by: Brian Schaffer

Last week, Allis-Chalmers Energy agreed to pay $1.9 million to their employees to resolve an unpaid overtime class action lawsuit. Back on November 30, 2010, employees of Allis-Chalmers Energy, an oil and gas servicing company, filed a lawsuit alleging that their employer failed to pay them overtime. The employees were employed as field operators who were primarily engaged in manual labor duties such as transporting, installing and maintaining oil and gas drilling equipment such as fluid lines and air compressors. Their employer only paid them a daily rate regardless of the amount of hours they worked. The employees in the lawsuit all claimed they consistently worked over forty hours in a workweek and one particular employee claimed he worked approximately twelve hours a day, seven days a week. Unfortunately, this type of labor violation occurs frequently, no matter what industry you work in. For more information regarding employees that are entitled to overtime, please contact Fitapelli & Schaffer for a free consultation.

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Jun 29

OBAMA CARE UPHELD BY SUPREME COURT

Posted by: Brian Schaffer

In an innovative ruling that is likely to send shockwaves throughout America, the Supreme Court of the United States decided that the so-called “individual mandate” is constitutional under Congress’s power to tax. The Supreme Court said that the individual mandate provision does not require all Americans to carry health insurance. Instead, the provision is an invitation for everyone to carry health insurance, but if people choose not to carry health insurance then they will have to pay a tax. By 2014, everyone will have to show proof of health insurance when they file their federal tax returns to avoid the tax penalty. For those people who choose not to carry health insurance, they will have to pay a minimal tax penalty each year that they choose to go without health insurance. The Affordable Care Act, also known as “ObamaCare”, has been the center of political debate for the past two years. Mainly, due to the “individual mandate” provision which was said to “require” all Americans to purchase health insurance. The Supreme Court stressed that this provision does not give the government power to require or force anyone to carry health insurance against their wishes. It is entirely each individual’s choice to either carry health insurance or pay the tax.

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Jun 21

ORAL AGREEMENTS FOR BONUSES ARE ENFORCEABLE

Posted by: Brian Schaffer

In a recent case, New York’s highest court decided that an oral bonus agreement is enforceable. The court awarded the employee the amount of the bonus, interest and attorneys’ fees. While working in the financial industry for a brokerage firm, the employee received a job offer from another employer, which was a broker-dealer. As part of the compensation package offered, the employee was to be paid a bonus. The agreement was not in writing, but was offered and accepted verbally. Before he received his bonus payment, the employer terminated his employment. Having not received his bonus upon his termination, the employee sued for breach of contract and various New York Labor Law violations. The employer argued that the employee was not entitled to the bonus because he signed the employment application and the employee handbook. Also, the employer argued that the bonus agreement must be in writing for it to be enforceable. The Court rejected all of the employer’s arguments. The court decided that the employment application and employee handbook did not mention anything about bonuses and only detailed that the employee was an “at-will” employee (meaning that the employment can be terminated at any time by any party for any reason or no reason at all). Furthermore, the court decided that the oral bonus agreement was valid and enforceable because the plaintiff relied on the promises of the bonus when he left his previous job and since the obligations of the bonus agreement could be performed within one year, the agreement did not have to be in writing. This court’s decision can have a tremendous impact on numerous employees in a wide range of industries whose employers have denied their bonuses because they were not in writing.

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Jun 19

SUPREME COURT DECISION REGARDING SALES REPS

Posted by: Brian Schaffer

The Supreme Court of the United States recently decided in Christopher v. Smithkline Beecham Corp. that pharmaceutical sales representatives are not entitled to overtime wages under the Fair Labor Standards Act (“FLSA”) because they satisfy the ‘outside salesmen’ exemption. The Court based their decision on the nature of the pharmaceutical sales reps’ position and the rules and industry wide practices set forth in the pharmaceutical sales industry. A pharmaceutical sales rep’s objective is to enter into as many nonbinding commitment agreements with physicians as they can in order to promote their companies prescription drug and gain incentive pay. Pharmaceutical sales reps, also known as Detailers, typically worked 40 hours a week during business hours and an additional 10-20 hours a week attending events, returning calls and emails, and performing other tasks. The Court found that these nonbinding commitments qualified as “sales” at least “in some sense,” which is all that’s required under the FLSA. The Court specifically noted the long, unrecorded hours, the lack of supervision, the difficulty in standardizing the work within a specific time frame and distributing it among several workers, and the Detailers’ earnings (which were substantially greater than the minimum wage) to further establish their conclusion. The Court denied the Department of Labor (DOL) and the Petitioners’ attempts to fully define a “sale” under the FLSA, finding that they were too narrow, and instead determined that a broader definition applied. The Court used the specific language in the text to determine that Congress intended that the transaction need not technically be a sale, that the examples listed were only an illustrative list, rather than an exhaustive one, and that each industry’s definition of an ‘outside salesmen’ must be judged separately based on their own respective sales methods. Finally, the Court explained that the long-standing practice of the DOL recognized and allowed Detailers to fall within the ‘outside salesmen’ exemption. Therefore, if Detailers were not exempt from overtime wages, it would create a sudden change in the industry standard that would undermine the fair warning principle, which requires fair warning be given in regards to the conduct a regulation prohibits or requires in order to avoid unfairly surprising one party.

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