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PRACTICE AREAS

Class & Multi-Party

Sometimes, there really is strength in numbers. Employers often have seemingly unlimited resources, employing in-house lawyers as well as large outside firms to represent their interests. Employees often feel out-gunned and out-manned. Class actions allow employees to band together to protect, not only the rights of the person bringing the lawsuit, but the rights of all their coworkers who have been equally wronged. Class and multi-party actions serve as a powerful tool to equalize the playingfield between employers and employees, and can have far-reaching consequences that protect past, current, and future employees from unlawful employment practices.

Beranbaum Menken is a leader in class and multi-party employment litigation. For example, the firm recently reached a $5.5 million settlement on behalf of 600 employees and former employees of SimplexGrinnell LP for prevailing wage violations. We also reached a multi-million dollar settlement for service workers who were the victims of wage theft. We are currently litigating a nation-wide collective action under the Age Discrimination and Employment Act on behalf of employees of Mainfreight, Inc., a national freight logistics company. We are also engaged in class action litigations against home health care companies for minimum wage and overtime violations as well as deli workers and cashiers.

If you believe that your workplace rights have been violated, and that those violations may have affected a number of your coworkers, and wish to discuss the possibility of bringing a class action or multi-party lawsuit, contact us to schedule a consultation.

Disability Rights & Employee Leaves

People with disabilities have the right to work in any field in which they are qualified to perform the work with “reasonable accommodations.” Some people, with or without disabilities, also have the right to take unpaid medical leave to care for their own serious medical condition or that of a close relative. While pregnancy is not necessarily a “disability,” pregnant women often face discrimination at the intersection of gender and disability – not only do they face bias because they are women and will soon be mothers, but they also suffer disability-related stigmas, with people assuming that they are weak, unwilling, or unable to continue working.

Beranbaum Menken fights for employees’ rights to be free from discrimination or harassment based on disability or pregnancy, and for the right of workers to take any medical leave to which they are entitled. We also fight for employees who try to assert his or her own rights and face unlawful retaliation as a result. If you think you have been the victim of unlawful disability or pregnancy discrimination or have been denied medical leave rights, contact us for a consultation.

Pregnancy Discrimination

Pregnancy discrimination is considered a form of sex discrimination under federal law. Employers cannot treat pregnant employees differently from non-pregnant employees. For example, if an employer offers certain accommodations for non-pregnant temporarily disabled employees (like allowing someone to do light duty temporarily), they can’t deny those accommodations to pregnant employees who need them. Some pregnancy-related conditions are considered disabilities within the meaning of the Americans with Disabilities Act. Moreover, people having children may be entitled to unpaid leave under the Family Medical Leave Act to care for their newborns.

Beranbaum Menken has experience protecting the rights of employees to be free of pregnancy discrimination. If you believe you may have been a victim of pregnancy discrimination, contact us.

 

The Family and Medical Leave Act

Many employees are entitled to up to 12 weeks of unpaid medical leave to care for their own serious medical condition, that of a close relative, or to care for a newborn or adopted child. The law that governs this leave is called the “Family Medical Leave Act” (FMLA).

FMLA protects individuals who work for a company with over 50 employees, who have worked for the company for at least 12 months, and who have worked at least 1,250 hours during the 12 months just before the leave.

Of course, many employers are loathe to allow their employees to take the time they need and to which they are entitled. Wrongfully denying an employee the ability to take their leave, or making it unreasonably difficult for them to take the leave constitutes “interfering” with an employee’s FMLA rights, and is illegal. We have represented numerous employees who have been wrongfully denied their FMLA rights or whose FMLA rights have been interfered with.

We have also represented employees who have faced retaliation for attempting to take their lawful FMLA leave. Some employees are simply fired as soon as they request the leave or shortly after they return, often under the guise of “bad” performance. For example, in a case litigated by this firm, an employer asked the employee to delay his leave. The employee agreed, though of course he was suffering a serious medical condition. His condition caused him to be late once and to miss a single day of work. His employers fired him immediately, preventing him from taking his leave. Other employers retaliate by giving the employee a substantially worse position or shift when they return from leave, which is generally not allowed under the law.

If you believe you may have been the victim of a FMLA violation, contact us.

 

Disability Discrimination

Beranbaum Menken LLP has a long history of defending the rights of people with disabilities. Our attorneys have been advocating for disability rights in the private and public sphere for almost 30 years.

While most people are familiar with certain requirements of the Americans with Disabilities Act (“ADA”), many people aren’t aware that they are entitled to certain rights. For example, the definition of “disability” was broadened in 2008, meaning that many more forms of disability are recognized as deserving of protection, including many more mental impairments, like depression and post-traumatic stress disorder.

Moreover, while employees may be aware that they are entitled to some accommodations, they may not be aware that they are entitled (and required) to engage in an “interactive process” with their employers. That means that employers can’t simply say “no” to a request for an accommodation, they are required to engage the employee in a dialogue about what accommodations are needed and how best to achieve them. The employees, also, are required to engage in the interactive process in good faith.

Some employees who have medical conditions aren’t actually “disabled,” in the sense that their condition may not actually affect their work at all. However, some employers are quick to jump to conclusions, and may discriminate against an employee based on stereotypes about the medical condition. Employers are not allowed to discriminate against people they “regard as” disabled, and people who are wrongfully presumed to have a disabling medical condition are protected under the ADA.

Finally, some people are simply prejudiced against people with disabilities. The ADA protects people against disability based harassment and hostile work environments.

Beranbaum Menken LLP zealously represents individuals protected by the ADA. We have achieved jury verdicts on behalf of a social worker denied a promotion while recovering from cancer and a salesman fired after suffering a heart attack. We have won significant settlements on behalf of an individual suffering from PTSD after being the victim of a crime, an individual who’s physical disability became totally debilitating due to his employer’s refused to accommodate him, an individual who was subjected to a hostile work environment by his coworkers because of his minor mental impairment, and an individual who lost his job as a result of his employer’s refusal to accommodate his major depression. We have also succeeded in getting a major airline, JetBlue, to change its long term disability policy, which had previously automatically terminated employees returning from long term disability leave, rather than assessing whether the employee was able to return to work with a reasonable accommodation.

We also engage in impact litigation and don’t shy away from complex litigation where the law is unclear. We believe that good cases make good law.

For example, Beranbaum Menken litigated the first case in the Second Circuit to explicitly hold that the New York State Human Rights Law defines “disability” more liberally than the ADA. We also litigated the first case within the Second Circuit to address discrimination based on “associations”, i.e. relationships with disabled individuals. The case involved a corporate employee who was fired from her job because she gave birth to a child with serious medical needs. 

If you believe you have been the victim of disability discrimination, that your employer has failed to accommodate you or engage you in an interactive process, or you

believe your employer wrongfully believes that you have a disability that affects your work, contact us for a consultation or visit our Frequently Asked Questions about Disability Discrimination.

Discrimination & Harassment

Almost 50 years after Congress passed the Civil Rights Act of 1964, making discrimination in employment unlawful, bias against women, older workers, racial and ethnic minorities, and disabled workers is still widespread in the workforce. Unlawful and unfair discrimination may be more subtle than it was in the past, but it endures. For example:

  • women working full time making only 77 cents for each dollar men earn in similar jobs;
  • white employees are twice as likely to get management jobs as equally qualified black employees;
  • full-time employees with disabilities earn $6,100 per year, on average, less than full-time employees who don't have disabilities; and
  • one in four women report workforce harassment.

The attorneys at Beranbaum Menken LLP have over 20 years of experience fighting workplace discrimination and retaliation. We have obtained significant settlements and jury verdicts (including two seven-figure jury verdicts) on behalf employees who were discriminated against and harassed at work.

Employment discrimination and unlawful harassment take many forms. The following are some of the more prevalent types of discrimination and harassment claims in which we represent people. For more information, you can also visit our or visit our Frequently Asked Questions about Disability Discrimination, Frequently Asked Questions about Disability Discrimination, and Frequently Asked Questions about Harassment.

Disability Discrimination

Disability discrimination is also unlawful under federal and local anti-discrimination laws. Beranbaum Menken has a long and proud history of representing the rights of people with disabilities (and people “regarded as” disabled by their employers).

Read more about Beranbaum Menken’s work with victims of disability discrimination, visit our Frequently Asked Questions about Disability Discrimination, or contact us if you believe you have been the victim of disability discrimination.

Race Discrimination

While many believe that race discrimination is no longer a prevalent problem in our society, many of our clients know otherwise. While the days of overt racist epithets are largely (though by no means entirely) over, race discrimination persists. For example, African American employees with no criminal records continue to be less likely to be hired than white employees, with the same experience, who do have criminal record. Similarly, minority employees are often disciplined much more harshly than their white counterparts, often as a result of unfair stereotyping.

Beranbaum Menken LLP has a deep commitment to combating race discrimination in the workplace. Among the many race discrimination claims we have litigated was one (link: kim v. dial) in which we obtained a $1.7 million dollar verdict (remitted by the court to $545,000 plus legal fees) on behalf of a Korean-American employee against a Japanese-based company. In another case (link Gaffney), the firm co-counseled two actions successfully representing three African American employees against the City of New York. 

Unlawful Harassment

Federal and local anti-discrimination laws also outlaw harassment based on age, disability, sex and gender, and race. 

Beranbaum Menken LLP has substantial experience representing victims of sexual harassment and other unlawful harassment, and has successfully pursued significant litigation in this area, including one case (link: ferris) in which the court clarified what constituted a “work environment” for hostile work environment purposes, holding that the hotel room where a flight attendant was allegedly raped by a co-worker during layover constituted part of her Awork environment.” In another case (link: Traynham 2007), the firm won a victory for a corrections officer by obtaining a stipulation requiring the Bureau of Prisons to remove the alleged harasser from the victims work environment.

If you feel that you are being harassed or subjected to a hostile working environment based on a protected category (like race, age, disability or gender), contact us or visit our Frequently Asked Questions about Harassment.

Sex & Gender Discrimination

Discriminating against employees because of their gender is unlawful under federal and New York State and City laws. “Discrimination” is generally defined as treating, say, female employees less favorably than male employees in the “terms and condition” of their employment. For example, some companies tend to pay women less than men for substantially the same work, or to pigeonhole them into stereotypically “feminine” jobs and preventing them from receiving promotions. Sometimes the discrimination is less overt – perhaps excluding women from high-powered meetings or refusing to give them the important, career-making assignments.

Pregnancy discrimination is also a form of gender discrimination. When employers assume that a pregnant woman will give up on her career or isn’t as committed as other employees, that employer is engaging in illegal sex discrimination. Similarly, when employers assumes that mothers aren’t dedicated to their jobs or won’t be able to make the time commitments the job requires, they are also engaging in sex discrimination.

Beranbaum Menken LLP has achieved notable victories representing women in sex and pregnancy discrimination cases.

These include (link: TSE) a $3.5 million jury verdict against an investment bank on behalf of a female stock broker, ultimately remitted to six figures by the district court. In another case (link: intl healthcare v Global), we were able to defeat summary judgment by showing that a reasonable jury could find that a female executive, who was assigned menial tasks and sexually stereotyped as a Agirl Friday@ despite having a law degree and substantial business experience, was discriminated against. In another case (link: Brennan) brought by the firm, the client was a long-time administrative assistant to the Commissioner of Public Affairs, who asserted that she was discriminated against when the City did not even consider her for a vacant Deputy Commissioner position, although she was already doing many of the positions job duties. Here, too, the plaintiff was successful in prosecuting the client=s discrimination and retaliation claims.

While there is currently no federal prohibition on sexual-orientation discrimination, such discrimination has been outlawed in New York City since 1986, and throughout the state since 2003. The attorneys at Beranbaum Menken have the skills experience in discrimination law to vigorously enforce the civil rights so recently gained by LBGT individuals, and to advocate for those rights not yet attained.

If you believe you have been the victim of discrimination based on sex, gender, pregnancy or sexual orientation, contact us to schedule a consultation.

Age Discrimination

In these tough economic times, older workers are often the first to be let go and the last to be hired. Federal and local laws have prohibited discrimination against individuals 40 years and older based on their age, and it is illegal to terminate, fail to hire or fail to promote an individual because of their age. This is one of the least well-known anti-discrimination laws, but it is one of the most important. Everyone gets older, and everyone has the right to continue working without worrying that they will be unfairly targeted or stereotyped. 

Beginning with McNulty (link), where the firm successfully represented a 60-year old Director of Personnel who was laid off by City and the not rehired, Beranbaum Menken has been representing older workers victimized by age bias. We are currently litigating a nation-wide collective action, where we represent 13 older workers terminated by one of the world’s leading freight logistics company, Mainfreight, Inc. In another case, we are suing JPMorgan Chase for keeping out a 58-year old worker from a management training program because of his age and then retaliating against him when he complained of discrimination. The firm is also prosecuting several age discrimination actions before the U.S. Equal Employment Opportunity Commission.

If you believe you have been the victim of age discrimination contact us to schedule a consultation.

Executive Compensation

Beginning and ending a relationship with an employer can be a fraught process, and people often feel out-gunned by their employers, who may have retained large law firms or have a staff of in-house counsel to represent them. At Beranbaum Menken, we help even the playing field for our clients. We have been advising individuals on executive compensation, severance agreements, and employment contracts for decades, and can give sound advice on protecting your rights to bonuses, stock options, commissions, deferred compensation, health and disability insurance and non-compete and non-solicitation issues.

We represent executives in the financial, telecommunications, advertising, healthcare, insurance, fashion and publishing industries, as well as other professionals in the medical, dental and legal fields.

Counseling and negotiating on behalf of recently terminated executives is a large part of our firm's work and, with our combined 75 years of experience, we will formulate a strategy to help leverage your legal position to obtain a favorable severance package.

We know the issues and we know how to negotiate, but we don’t shy away from litigation or arbitration when it is necessary to protect our clients’ rights, and our track record speaks for itself.

Restrictive Covenants: Non-Compete and Non-Solicit Agreements

Employers frequently require executives and professionals to enter into non-compete and/or non-solicit agreements to restrict their future business opportunities. If legally enforceable, non-compete agreements identify certain entities that employees must refrain from working for after their current employment relationship ends. Non-solicit agreements identify certain clients, customers or investors that employees are prohibited from soliciting or contacting for business purposes after their current employment relationship ends. Non-solicit agreements often prevent employees from contacting their former colleagues to ask them to come work for or with them at their new business. These agreements can be complicated and, if ignored or taken lightly, can handicap employees in the future. 

At Beranbaum Menken, we have substantial experience counseling our clients concerning non-compete and non-solicit agreements. It is critical to obtain advice before you enter into such agreements, during your employment before moving to another job, and after your employment has terminated. Of course, it is critical that former employees being threatened with litigation for supposedly violating such agreements obtain experienced counsel.  

The attorneys at Beranbaum Menken will review the agreement, assess its enforceability and strategize with you to decide the most prudent course of action. Defenses can be raised that may decrease or eliminate the restriction.  If necessary, we will vigorously represent you in court.

Representative client engagements include the following:

  • Provided advice and commenced an action seeking an injunction and damages on behalf of a health care executive who had signed an over broad non-compete agreement upon his hire.
  • Counseled physician who had signed a non-compete and non-solicit prior to his move from one medical partnership to another.
  • Counseled and defended a web based advertising executive who was seeking to move to a new position working for another company in the same industry.
  • Represented a sales and marketing executive seeking to solicit investors she had established relationships with prior to working at the hedge fund she was leaving.

If you are being asked to sign a non-solicit or non-compete agreement, if you have questions about an agreement you’ve already signed, or if you are being threatened with litigation for allegedly breaching such an agreement, contact us to schedule a consultation.

Severance Negotiations and Litigation

Beranbaum Menken has extensive experience in advising and representing executives and other professionals in negotiating severance agreements, as well as in litigation and arbitration resulting from termination of employment. Involuntary terminations are unpleasant, but whether you have a contract or not, and most executives do not, a seasoned attorney can help you negotiate a fair severance agreement.

With our years of experience negotiating severance agreements, we guide you through each of the negotiation steps from the initial meeting, where we educate you about the process and ascertain your needs, to research and drafting a demand letter, to finally negotiating and possibly litigating or arbitrating. 

The goal of a successful severance negotiating is to protect our client’s financial welfare and solidify their future job prospects. Although varied and complex, some of the issues that are typically resolved during severance negotiations are:

  • How much severance or compensation will I receive? Is it taxed and, if so, how?  Will it be paid over time or in a lump sum? Will I receive my bonus for the part of the year that I worked?
  • Will I also receive continued benefits, such as paid health insurance?  Or, will my former employer reimburse me for my COBRA payments?
  • What will happen to my vested and unvested stock options? Can I continue on my former employer’s payroll so I can obtain my unvested stock options?
  • Am I still bound by the non-compete and non-solicit agreement I signed while I was still employed by my former employer?  If I did not sign a non-compete and non-solicit agreement, can my former employer include these specific provisions in a severance agreement?
  • How do I explain the circumstances surrounding my termination to prospective employers? What will my former employer say to prospective employers when it investigates and calls seeking a reference?
  • Can I take samples of my work from my former employer to show prospective employers to help me obtain a new job?

Of course, if severance negotiations do not result in an acceptable package, and you have a valid legal claim, the attorneys at Beranbaum Menken will discuss your options including the commencement of a lawsuit or an arbitration.

If you are grappling with a severance package, or the lack thereof, contact us to schedule a consultation.

Employment Contracts

Although most executives enter an employment relationship hoping for a long and mutually rewarding relationship with their new business, a prudent executive needs to make sure to protect their rights. Beranbaum Menken attorneys can help identify the relevant issues that should be negotiated and embodied in a written employment contract.  Then, either in a behind-the-scenes support role or in one-on-one negotiations with your prospective employer’s legal representative, we make sure you get what you need.

Some of the major issues that should be addressed in executive employment contracts are:

  • Salary, bonus and other cash compensation;
  • Terms of stock options, restricted stock and other equity awards, including the vesting of such awards;
  • Parameters of any non-compete or non-solicitation covenants that may restrict or limit your ability to join a competitor or contact clients or employees if/when your employment is terminated;
  • Circumstances in which your employer can terminate your employment “for cause” and when you can resign for “good reason;”
  • Responsibilities, if any, that you may have upon the termination of your employment;
  • Extent and limitation of your job responsibilities and duties;
  • Circumstances giving rise to severance payments and benefits and the terms of such severance packages; and
  • Post-employment remedies (i.e., arbitration and mediation requirements).

We at Beranbaum Menken have found that marketable executives have more negotiating power and influence then they might expect, and can benefit from having savvy and seasoned counsel represent their interests.

In these economically challenging times, where employers frequently resist paying bonuses to terminated or departing employees, it is critical to have an experienced, skilled attorney both to help you negotiate the terms of your employment and to help you protect your contractual rights should your employment end.

If you are considering negotiating a contract with a new employer, or feel that the contract you had with a current or previous employer is being violated, contact us for a consultation or read our Frequently Asked Questions about Executive Contracts.

Wage & Overtime Violations

Beranbaum Menken LLP fights for workers’ rights to be fully and fairly compensated for their work. We represent workers whose employers have violated federal and/or local laws governing minimum wage, overtime, misclassification, tips, commissions, prevailing wages, and other kinds of compensation.

The lawyers at Beranbaum Menken have recovered millions of dollars in unpaid wages on behalf of New York employees in class action litigations and have also successfully resolved many wage and hour claims for individual employees, both in and out of court.

Beranbaum Menken represents workers with all different kinds of wage and hour claims, including:

  • Employees who have not been paid the minimum wage
  • Employees who have not been paid overtime.
  • Home health attendants who work in the homes of their elderly and/or disabled clients.
  • Tipped employees whose employers have wrongfully credited tips towards the employer’s obligation to pay the minimum wage.
  • Employees who have been misclassified as “exempt” from overtime laws because the employer claims they are administrators, executives or professionals.
  • Employees who have been denied meal and rest breaks.
  • Employees who have performed certain types of work on public works contracts without being paid the prevailing wage.
  • Employees who have suffered unlawful deductions from their pay.
  • Employees who have suffered retaliation at the hands of their employers for complaining about their pay.

If you believe that your employer’s pay practices do not comply with federal or New York law, contact an attorney at Beranbaum Menken for a consultation to discuss your wage and hour claim.

Unlawful Deductions

New York law prohibits employers from taking unlawful deductions from workers’ earned wages. Unlawful deductions include those for lost or damages company property; the cost of uniforms; business losses, register shortages and overhead expenses.

Beranbaum Menken attorneys have successfully represented numerous employees whose employers have made illegal deductions from their wages. We can help you determine whether deductions from your wages were unlawful, and take action on your behalf to recoup your lost wage. Contact Us.

 

Retaliation

State and federal law prohibits employers from taking adverse actions against employees who complain about unlawful conduct in the workplace. Adverse actions can include termination; demotion; black-listing for future employment and undeserved negative employment references and evaluations.

Visit our whistleblowing and retaliation page for more information.

Beranbaum Menken attorneys have successfully represented numerous employees with retaliation claims. If you have suffered an adverse employment action because you complained about workplace conditions, we can help you determine whether your employer’s actions were retaliatory and help you recoup lost back wages and other damages. Contact us.

Meal and Rest Breaks

New York law requires that employers give workers paid meal and rest breaks. Often, employers refuse to give employees the breaks they are entitled to. Sometimes employers deduct pay from workers for these supposed rest breaks, even though the workers aren’t actually being allowed to take breaks at all.

Beranbaum Menken attorneys have successfully represented numerous employees whose employers have denied them the breaks to which they are entitled. We can help you determine whether you have been the victim of wage, and take action on your behalf to help you recoup your lost wages. Contact Us.

Tipped Employees

Tipped employees, such as waitstaff, hotel staff, buspeople and luggage handlers are particularly susceptible to wage abuses.Common illegal practices include:

  • Employers failing to pay tipped employees any wage at all, requiring tipped employees to live only on tips;
  • Failing to the tipped employee minimum wage, and not allowing them to keep their earned tips;
  • Allowing management employees to participate in tip pools, i.e., taking a cut of the tips;
  • Charging waiters and waitresses for walk-outs who do not pay their bill;
  • Failing or refusing to pay overtime when required; and,
  • Altering time cards to inaccurately reflect hours worked.

Beranbaum Menken attorneys have successfully represented tipped employees in numerous individual and class action cases. We can help you determine whether you have been the victim of tip theft, and take action on your behalf to help you recoup your lost wages. Contact us.

Prevailing Wage

Many states, including New York and New Jersey, require that employees of private companies who perform work on public projects be paid what are known as “prevailing wages.” These wages are derived from the pay earned by union employees doing similar work in the area, and are often substantially higher than the wages paid on private, non-union jobs.  In addition, prevailing wage laws require employers to pay the cash value of fringe benefits. Department of Labor’s prevailing wage schedules are available here: 

http://wpp.labor.state.ny.us/wpp/publicViewPWChanges.do 

and the New York City Comptroller’s Office prevailing wage schedules are available here: http://www.comptroller.nyc.gov/bureaus/bll/schedules.shtm

In New York, prevailing wage laws cover employees doing construction, repair, and maintenance work on publicly owned buildings and facilities, like public schools, highways, hospitals and jails. Public work also includes building services work such as cleaning, gardening, and security work.

Because prevailing wages are so much higher than wages in private, non-union work, unscrupulous employers an incentive to break the law and underpay their employees.  If you are a non-union employee working on a New York State or New York City public building or facility, and are getting the same pay as when you do work for private facilities, then you maybe unlawfully underpaid.

Beranbaum Menken represents a wide variety of employees in prevailing wage lawsuits, such as fire alarm workers, roofers, boilermakers, and masons. In 2013, we obtained a $5.5 million settlement from Simplex Grinnell LP in a class action filed on behalf of fire alarm and sprinkler workers who were not paid prevailing wages. If you are working on a public facility, and think you are underpaid for your public work, contact Beranbaum Menken for a consultation.  

Home Attendants and Domestic Employees

Home attendants, also known as home health aides, and domestic workers are generally entitled to be paid the minimum wage and overtime for their work. Often, employers treat home attendants and domestic workers as exempt from the wage and hour laws. Employers often fail to pay overtime to such workers, and sometimes go so far as to pay them a “flat fee” for a full 24-hour shift, rather than paying them their hourly wage (plus overtime) for each hour worked.

Whether flat-rates for 24-hour shifts violates federal and state law depends on a number of different factors, including where the work was performed, what type of work was being performed and what kind of facilities (sleeping and otherwise) were provided at the workplace.

Beranbaum Menken attorneys have represented a large number home attendants and home health aides in wage and hour disputes, including individual litigations and numerous large class actions. We are highly familiar with this area of law and can help you determine whether you’ve been properly paid and to help you recover any wages you are owed. Contact us to schedule a consult.

Misclassification of Exempt Employees

The Fair Labor Standards Act (FLSA) and the New York Labor Law (NYLL) protect workers and ensure that they are paid proper wages. Most workers are entitled to overtime pay , as well as the minimum wage. Some workers, however, are exempt from the protections of the FLSA and the NYLL. However, employers often wrongly claim that workers are exempt (“misclassify” them) to get around their legal obligations to pay minimum wage and overtime.

Examples of employees who are not required to be paid overtime or the minimum wage include:

  • Management employees whose work is directly related to the actual management of the business, like managers, directors and other executives who are empowered to make leadership decisions and supervise two or more people;
  • Administrators whose work is directly related to the general administration of the business, who perform non-manual office work, and who exercise discretion and judgment in matters of significant importance, like administrators, accountants and human resources personnel;
  • Professionals who have specialized academic training that they utilize in their jobs, like lawyers, dentists, architects and doctors;
  • Computer specialists, such as network administrators and Internet and database administrators;
  • Salespeople who work in the field, outside the main place of business;
  • People in a recognized creative or artistic field, who have artistic discretion over the product of their work.

Exemptions to the federal and state labor laws are very narrow, meaning that a worker must fit clearly into a specific category in order to be considered exempt. Employers, however, tend to try and get out of their labor law obligations by squeezing people into exemptions where they don’t fit.

For example, many people who perform routine office work are misclassified as exempt “administrative” employees, because we think of “administrative” work as being similar to the work of assistants or paralegals. However, most assistants and paralegals are not exempt, and are thus entitled to overtime pay. Similarly, some employers will try to classify any employee working in a creative industry as an “artist,” even though the employee is essentially painting by numbers and has no discretion over the artistic direction of their work.

The determination of whether any given individual is exempt or entitled to overtime protection depends heavily on the specific facts of their situation. The lawyers at Beranbaum Menken have extensive experience with the FLSA and NYLL exemptions, and can help you figure out whether you have been misclassified. If you have been inappropriately classified as an exempt rather than nonexempt employee, we can help you recoup your back pay and overtime wages.

Overtime

Most employees are entitled by law to earn time-and-a-half for all hours over 40 in a week. The time-and-a-half requirement applies to their “regular hourly wage,” meaning that a worker making $8/hour is entitled to $16/hour for overtime hours, and someone else making $50/hour is entitled to $75/hour for overtime. 

Many employers claim their employees are “exempt” to avoid paying them their rightful overtime. Other employers simply avoid keeping records or claim they simply do not have to pay employees for all hours they work. Most employees we represent who are not paid theminimum wage are also denied overtime pay, including home health aides and tipped employees

If you believe that you have been wrongfully denied your overtime pay, contact us to schedule a consultation.

Minimum Wage

Most employees have the right to be paid at least minimum wage. At present, the federal and state minimum wage is $7.25 per hour. Many employers attempt to get around this requirement by claiming that their employees are exempt from minimum wage protections, or that they do not have to pay employees for all hours they work.

Beranbaum Menken currently represents many employees who have been wrongly denied the minimum wage, including:

  • Home health attendants particularly those who work overnight shifts and are not paid the minimum wage.
  • Tipped employees whose employers have wrongfully credited tips towards the employer’s obligation to pay the minimum wage.
  • Residential janitors who are expected to be on call for 24 hours per day but who are only paid for their daytime hours.
  • Employees whose employers simply fail to accurately record or pay actual hours worked.
  • Employees who have been misclassified as “exempt” from the minimum wage laws.

Beranbaum Menken attorneys have successfully represented numerous employees who have had wages wrongfully withheld by their employers. We can help you determine whether you have been the victim of wage theft, and take action on your behalf to help you recoup your lost wages and other damages. 

Whistleblowing & Retaliation

While society needs people to stand up against unlawful practices, employers often retaliate against good-faith whistleblowers. Employers may see the person as a trouble maker, or simply wish to cover up their bad practices or protect people who have done wrong.

Some forms of retaliation are unlawful, and some laws even actively encourage whistleblowing, by offering successful whistleblowers a bounty. However, the unfortunately reality is that whistleblowing and anti-retaliation laws are both complex and narrow, meaning that much good faith, well-meaning whistleblowing is not protected. At Beranbaum Menken, we understand the nuances of these laws, and can help you determine whether to blow the whistle, if you are in possession of information concerning wrong-doing, and whether any retaliation you may have faced for past whistleblowing was unlawful. Contact us to schedule a consultation.

Retaliation

Some laws also protect employees from retaliation from their employers for making certain complaints. For example, federal and state anti-discrimination laws protect employees who make good-faith complaints concerning conduct that they believe to be discriminatory. Similarly, many wage and hour laws protect employees who make complaints concerning their wages. The National Labor Relations Act protects some employees from retaliation for voicing complaints to their coworkers about their working conditions. New York Labor Law Section 740 protects people from retaliation for blowing the whistle about employer conduct which “is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety, or which constitutes health care fraud.”

Retaliation can take the form of any conduct which constitutes an “adverse employment action,” including termination, demotion, or failure to promote.

Beranbaum Menken has successfully protected employees against many different forms of retaliation. For example, this firm is currently representing an employee who was terminated for exposing misconduct by the City of Mount Vernon. In retaliation for his whistleblowing, the employee was terminated in violation of his constitutional right to due process. We are also litigating a case against a midtown Manhattan health club after an employee blew the whistle on unsafe conditions in the pool and was subsequently fired. We secured a six figure verdict for a pilot who was fired after reporting unethical and illegal conduct to his supervisors.

Our anti-retaliation laws are complex and nuanced, and unfortunately leave many good faith whistleblowers in the cold. Beranbaum Menken has the experience to help you determine whether the retaliation you have suffered may be unlawful. Contact us to schedule a consultation.

 

Qui Tam Suits

A “qui tam” suit essentially means a lawsuit brought by a private individual in the place of the government, meaning that a private individual is suing to recover money, not for themselves, but for the government.

Some laws, such as the federal and New York False Claims Acts, actively encourage people with information about certain kinds of wrongdoing to come forward. These laws offer bounties to people who successfully uncover fraud or misrepresentations regarding government funds. Where someone has specific information concerning a fraud against the government, and that information not currently known to government investigators, the law may allow the whistleblower to retain a portion of any funds recovered for the government.

Beranbaum Menken has experience bringing qui tam suits and securing favorable outcomes for whistleblowers, including a $5.7 million award for a client who blew the lid on off-label marketing of pharmaceuticals and a $3.4 million reward for a client who blew the whistle on Medicaid fraud,

We can help you navigate the often labyrinthine qui tam and false claims act laws. We help our clients expose corruption and misconduct, and protect our clients’ rights to be rewarded for their bravery. If you believe you may have information concerning fraud against a government entity, contact us to schedule a consultation.