On January 24, 2015, Chris Marlborough, principal of the Marlborough Law Firm, co-presented a continuing legal education program at the Nassau Academy of Law before one hundred new admitted attorneys. The segment, entitled “Alphabet Soup of Labor and Employment Cases,” was part of the Nassau County Bar Association’s "Bridge-The-Gap" weekend which provides all the CLE credits newly admitted attorneys need for their first two years of practice. Mr. Marlborough focused his portion of the program on minimum wage and overtime requirements of federal and New York State law. Mr. Marlborough said that he was honored to participate and noted, “It was my privilege to provide such an impressive group of young lawyers with information about the wage theft crisis in America.”

1. Minimum Wage and
Overtime Requirements
of the Fair Labor Standards Act and
New York Labor Law
By Christopher Marlborough, Esq.

2. Rapidly Expanding Practice Area
• Federal wage and hour case filings are up 237% over the past decade
and 438% since 2000.
• New York and California provides criminal penalties for wage theft.
• State attorneys general and the departments of labor have become
increasingly aggressive in their enforcement of existing law.

3. Sources of Law
• Fair Labor Standards Act of 1938, 29 USC § 201, et seq.
• New York Labor Law
• Minimum Wage NYLL § 652
• Overtime NYLL § 232
• Remedies NYLL §§ 198, 198-a (including criminal penalties)
• New York Wage Orders
• Hospitality Industry, 12 NYCRR § 146
• Farm Workers, 12 NYCRR § 190
• Miscellaneous Industries, 12 NYCRR § 142
• Not for Profit, 12 NYCRR § 143
• Building Service Industry, 12 NYCRR § 141
• Department of Labor regulations and opinions
• Do not have the force of law, but can be persuasive

4. The Fair Labor Standards Act of
1938
• Covers only minimum wage ($7.25) and overtime (time and a half over 40 hours).
• Jurisdictional requirements
• Enterprise Coverage- $500,000 in annual revenue and hospitals, schools (enterprise coverage); or
• Individual Coverage- workers "engaged in commerce or in the production of goods for commerce" and
domestic service workers.
• Two year SOL unless defendants’ conduct is willful in which case three-year SOL applies.
• Failure to post wage and hour posters may result in extension of SOL to six years.
• Opt-In Collective Action procedure
• Notice issued at an early stage (after showing that workers are similarly situated with respect to
plaintiffs’ claims).
• Liquidated damages
• 100% liquidated damages unless defendant can show good faith.
• Attorneys’ fees and costs

5. The New York Labor Law
In many ways, New York State laws provides much stronger protections than the FLSA
• Overtime exemptions more stringent
• Higher minimum wage ($9.00)
• Additional protections:
• Spread of Hours damages for minimum wage and hospitality workers;
• Call in pay;
• Wage Theft Prevention Act Notification requirements;
• Strong protections for tipped workers and lower tip credit; and
• Requires timely payment of wages owed which may cover “gap time” claims
• $20 per hour employee worked 42 hours but only paid for 20. NYLL Actual Damages = $460. FLSA damages only $60.
• Six year statute of limitations
• Opt-out class action procedures (Rule 23 in federal court; Rule 9 in NY State court)
• Likely to result to result in a class size 10 to 20 times larger than an FLSA opt-in collective action.
• Notice issued at a later stage (after satisfying the class certification requirements).
• Liquidated damages
• Prior to April 9, 2011- 25% liquidated damages; On or after April 9, 2011- 100% liquidated damages.
• Federal courts have award both NY and FLSA liquidated damages.
• Attorneys’ fees and costs

6. Who is an Employer?
• 29 USC § 203(d) - “Employer includes any person acting directly or
indirectly in the interest of an employer in relation to an employee
…”
• NY BCL § 630 – provides for individual liability for top ten
shareholders of a closely held corporate defendant
• Recent legislation would extend the law to members of limited liability
companies

7. Who is an Employee?
• Why is this important?
• Non-Employees are not protected by federal and state minimum wage and
overtime laws.
• Non-Employees are not protected by civil rights and health and safety laws.
• Non-Employees may not collect earning-based Social Security,
unemployment or workers’ compensation.
• Management does not have to make Social Security and Medicare
contributions for non-employee.

8. Independent Contractors
• Federal Economic Realities Test
• Worker’s services integral to business
• Permanency of relationship
• Worker’s investment in facilities and equipment
• Nature and degree of boss’s control
• Opportunities for profit or loss
• Independence of the worker’s business (degree of skill, judgment,
advertising)
• NY Common Law Right to Control Test
• Whether worker worked at her own convenience
• Whether worker worked free to engage in other employment
• Whether worker was on employer’s payroll
• Whether worker worked on a fixed schedule

9. Unpaid Interns
The DOL’s tests to determine whether unpaid interns are employees are extremely
narrow
• U.S. DOL Fact Sheet #71
• The internship, even though it includes actual operation of the facilities of the employer, is
similar to training which would be given in an educational environment;
• The internship experience is for the benefit of the intern;
• The intern does not displace regular employees, but works under close supervision of
existing staff;
• The employer that provides the training derives no immediate advantage from the activities
of the intern; and on occasion its operations may actually be impeded;
• The intern is not necessarily entitled to a job at the conclusion of the internship; and
• The employer and the intern understand that the intern is not entitled to wages for the
time spent in the internship.
• New York Department of Labor is even more restrictive
• Employer must satisfy each of eleven factors.
• Recent Intern News:
• Oct. 2014 – NBC Universal $6.4 million proposed settlement announced
• Nov. 2014 - Condé Nast propose $5.8 million settlement announced
• Second Circuit considering appeals in Hearst Newspapers and Fox Searchlight intern cases
which could determine the standard in this Circuit.

10. EXEMPTIONS
• Executive
• Professional
• Administrative
• Outside sales employee
• Commissioned sales employee
• Computer professionals
• Seasonal and recreational
Establishments
• Farmers
• Switchboard operators
• Local newspapers
• Motor carriers
• Domestic companions
See Section 13 of the FLSA for complete
list of exemptions
• Executive
• Professional
• Administrative
• Outside sales employee
• Taxicab drivers
• Non-profit volunteers
• Volunteers at short term recreational
events
• Camp counselors
See NYLL § 651(5) for complete list of
exemptions
FLSA Exemptions NYLL Exemptions

11. White Collar exemptions
Executive, Administrative and Professional Exemptions Worker Must Satisfy Both “Primary Duty Test” and
“Salary Test.” Primary duty is the principal, main or most important responsibility.
Weekly Salary
FLSA $455.00
NYLL 2013 $543.75
NYLL 2014 $600.00
NYLL 2015 $656.25
NYLL 2016 $675.00
Primary Duty
Executive Managing the enterprise or part of it. Must direct the work of at
least two full time workers and have a role in hiring and firing,
promotion or change in status of workers.
Administrative Performance of non-manual work directly related to the
management or general business operations, which includes the
exercise of discretion and independent judgment in matters of
significance.
Professional Work which is intellectual in character requiring consistent exercise
of discretion and judgment. Advanced knowledge in a field of
science or learning acquired by prolonged intellectual instruction.
FLSA- No salary test requirements for doctors and lawyers. NYLL no
salary test for professional exemption.
Under the FLSA, highly compensated employees (> $100,000) are exempt if they meet the salary test and “customarily and
regularly perform” one of the primary duties of an exempt white collar employee.

12. Minimum Wage
Non-Tipped
Workers
Food Service
Workers*
Service Employees* Resort Hotel
Workers*
1/1/2011 $7.25 $5.00 $5.65 $4.90
12/31/2013 $8.00 $5.00 $5.65 $4.90
12/31/2014 $8.75 $5.00 $5.65 $4.90
12/31/2015 $9.00 $5.00 $5.65 $4.90
FLSA
• 7.25 per hour for non-tipped
employees
• $2.13 per hour for qualifying tipped
employees (after applying tip credit)
• There has been no increase in the
federal tipped minimum wage since
1991 *for qualifying tipped employees
OVERTIME
NYLL
• Time and one half at the regularly hourly rate for all hours > 40
• Second Circuit courts presume salary is for first forty hours, unless there is an agreement to the contrary.
This can have enormous implications for damages calculations (3x or more).

13. The Tip Credit
FLSA and NYLL Allow an Employer to Credit Some Workers’ Tips Against the Employer’s Minimum Wage Obligations
To claim the federal tip credit:
• employer must provide notice at time of hiring that employer will apply the tip credit;
• tipped worker must regularly and customarily receive more than $30 per mo. in tips;
• If worker does not receive at least minimum wage including tips, employers must make up the difference; and
• at least 80% of the work performed by tipped workers must relate to direct customer service.
No additional tip credit for overtime hours. Tip credit must be calculated after overtime obligation is factored in.
• FLSA- $5.12 tip credit = $2.13 p/hr regular time. Employer must pay $5.76 p/hr OT.
• NYLL (food service workers) $3.75 tip credit = $5.00 p/hr regular time. Employer must pay $9.38 p/hr OT.
Tip Pooling and Tip Sharing: Permissible among direct service employees.
• NYLL- Managers are not permitted to share in the tips.
• Barenboim v. Starbucks, 995 N.E. 2d 153 (2013) (NY Court of Appeals held Starbucks shift supervisors with limited. supervisory responsibilities were permitted to
participate in the tip pool).
Tip Appropriation (NY): Labor Law §196-d strictly prohibits employers from appropriating tips intended for employees even if the employer does not take a tip credit. See
also NYCRR § 146-2.18-2.19.
Are “Service Charges” really tips?
• Employers must notify customer when delivery service charges do not constitute a tip.
• Employers must clearly and conspicuously notify customers when a service or administrative charge is not a tip. NYLL 196-d.

14. Additional Wage Related Statutes
• Retaliation. Both the FLSA and NYLL prohibit retaliation against workers who file
complaints about unpaid wages.
• Prevailing Wage Laws. Under both Federal and NY Law, certain government
contractors are required to pay their workers a “prevailing wage” for work on those
contracts.
• WARN Act. Under certain circumstances employers are required to provide sixty
days’ notice to employees when it is closing down a worksite.
• 2014- Dewey LeBoeuf reached a $4.5 million settlement with its workers in 2014.
• Spread of Hours Pay (NY only). Hospitality and minimum wage workers must receive
one extra hour of pay at the minimum wage rate when working more than ten hours
in a single workday or working a split shift.
• Call in pay (NY only). When workers are called in to work, under certain
circumstances they must be paid for the lesser of four hours or their regularly
scheduled shift.
• Wage Theft Prevention Act Notifications (NY Only). Requires employers to provide

15. Common Mistakes Employers Make
• Relying on an employee’s job title to justify an exemption.
• Assuming that salaried employees are exempt.
• Improper salary deduction from exempt employees, resulting in a loss of the
exemption.
• Requiring employees to perform duties off the clock.
• Refusing to pay for overtime that was not pre-approved.
• Automatic deductions for breaks that the employee does not take.
• Private sector employers’ payment of comp time in lieu of an overtime premium.
• Failing to consider state law requirements.
• Failure to maintain records.
• Paying workers off the books or partially off the books.
• Replacing employees with unpaid interns.
• Paying non-exempt employees on a salaried basis.

16. Christopher Marlborough, Esq.
The Marlborough Law Firm, P.C.
445 Broad Hollow Road, Suite 400
Melville, New York 11747
(212) 991-8960
chris@marlboroughlawfirm.com
http://www.fightwagetheft.com
https://twitter.com/fightwagetheft
https://www.linkedin.com/in/marlborough