Fighting for American Workers

Types of Wage Theft



Super User

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Christopher Marlborough, Principal Attorney of the Marlborough Law Firm, P.C., has been selected for the 2018 NYC Metro SuperLawyers’ list. This is the sixth year in a row that Mr. Marlborough received recognition by the rating service. In 2013 and 2014, Chris was selected to SuperLawyers’ NYC Metro Rising Stars list for young and newly admitted attorneys. In 2015, 2016 and 2017, Mr. Marlborough was selected to the NYC Metro SuperLawyers list for more experienced attorneys.    

According to SuperLawyers.com, the list represents no more than five percent of lawyers in the state. The organization describes its thorough selection process as follows:

Super Lawyers selects attorneys using a patented multiphase selection process. Peer nominations and evaluations are combined with independent research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis. The objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel. Since Super Lawyers is intended to be used as an aid in selecting a lawyer, we limit the lawyer ratings to those who can be hired and retained by the public, i.e., lawyers in private practice and Legal Aid attorneys.

Mr. Marlborough was humbled by the announcement, responding: “It is truly an honor to be recognized by SuperLawyers six years in a row. Some of the finest attorneys that I know have been recognized by rating service for their professional achievements and I am proud to be in their company. I would like to thank those that nominated me for the honor and everyone who participated in the selection process.” 

Saturday, 22 March 2014 19:25

Jennifer L. Marlborough

JLM

Jennifer Marlborough is Of Counsel to the Marlborough Law Firm.  She has more than 14 years of experience in commercial litigation including employment litigation.

Jennifer earned an undergraduate dregree from Connecticut College. She earned her law degree from Boston University in 1998.  While at B.U., Jennifer served as Editor-in-Chief on the Boston University International Law Journal. 

From 1998 to 2012, Jennifer worked as an associate at the law firm of Wormser, Kiely, Galef and Jacobs, LLP. 

Jennifer is licensed to practice in the States of New York and New Jersey.  She is also admitted to the United States Supreme Court; United States Courts of Appeals for the Second and Fourth Circuits, United States District Courts for the Southern District of New York, Eastern District of New York, and District of New Jersey.

Friday, 11 October 2013 01:35

Fluctuating Work Week

The fluctuating workweek method is a formula for calculating overtime that was formerly referred to as "Chinese overtime." It is legal under federal law and the laws of most states, but only if all of the law's requirements are followed.

Violations of the fluctuating workweek rules most often occur under these circumstances:

1. The employee works a regular schedule and her hours do not fluctuate.

2. The employer fails to include all proper payments to the employee when calculating the hourly rate.  Where an employer fails to include commissions, bonus or holiday pay into the hourly rate calculation, it may be violating the fluctuating workweek rules.

3. The employer fails to pay his employees the full base salary in weeks where the employee works less than forty hours in a week. The employer cannot have it both ways. If the employer is going to pay a base salary, the salary has to be paid whether the employee works more than forty hours or not.

4. The employee works so many hours in a week that the hourly rate falls below the minimum wage.

5. The employee and employer did not have an agree that they would be paid according to the fluctuating workweek method.

 This formula allows an employer to save money on overtime costs. Compared to the standard overtime calculation method, an employee paid under the fluctuating workweek method could be earning hundreds of dollars less per week.  However, when employers don't follow the strict rules required to use this method of payment, the fluctuating workweek calculation may be disallowed and the employer may have to pay his workers the standard method.

Here are two ways that employers save money using the fluctuating workweek method. 

First, instead of paying an hourly rate plus time and half for overtime hours over 40, using the fluctuating workweek method, an employer can pay a fixed salary and an additional half time of the employee's hourly rate for overtime hours based on the number of hours worked. 

Second, the hourly rate is not based on a forty hour workweek. Instead it is based on the number of hours the employee actually works.  If an employee's base salary is $500 per week and she works forty hours per week, her hourly rate is $12.50.  If she receives the same base salary but works 50 hours, her hourly rate is only $10 per hour.  The more overtime hours the employee works, the less she gets paid per hour.

If you think your employer failed to pay you at the proper overtime rate as required by law, contact the Marlborough Law Firm today for a free consultation.

Thursday, 26 September 2013 03:06

Prevailing Wage Fraud

Federal and state prevailing wage laws protect workers rights on government contracted jobs.  Many workers on construction jobs resulting from federal, state and municipal contracts are entitled to compensation at no less than the “prevailing wage” rates that are determined to be appropriate in the area where the work is performed. 

Prevailing wage cheats don't just hurt their employees. When committing prevailing wage fraud these employers are cheating their workers, the government to which they promise to hire skilled labor at fair wages and their competitors, who can't offer a competitive bid on a government contract without breaking the law.

Prevailing wage laws are designed to ensure high quality workmanship on government funded construction projects and prevent contractors from low-balling their bids on those projects by paying their workers substandard wages.

Workers often affected by prevailing wage fraud include non-union electricians, plumbers, laborers, and masons.

The prevailing wage rate is often similar to the rates paid to union members including the value of their benefits package. For example, in a position where the average union member would earn $45.00 an hour in pay and an additional $35.00 an hour in benefits, a prevailing wage worker could be entitled to at least $80.00 per hour in pay and benefits. When a worker is paid only $15.00 per hour with no benefits and is cheated out the prevailing wage, the monetary damages can be substantial.  

If you think your employer failed to pay you at the prevailing wage rate as required by law, contact the Marlborough Law Firm today for a free consultation.

Wednesday, 25 September 2013 04:10

Independent Contractor Abuse

Employers often cheat their workers, the government and their competitors by misclassifying their employees as independent contractors.  The U.S. Department of Labor has identified the misclassification of employees as independent contractors as a major factor in the American wage theft crisis.  Employees who are misclassified as independent contractors are denied their rights under minimum wage, overtime and other worker protection laws.

"Some people call the practice ‘misclassification.’ I call it what it is: workplace fraud. Workplace fraud has three victims: the worker of course; the employers who do the right thing but find themselves undermined by an un-level playing field; and the government, which gets cheated out of unpaid taxes."

 

Thomas Perez, United States Secretary of Labor

Workers are not independent contractors just because they receive a 1099. Independent contractor misclassification is sometimes referred as 1099 fraud because employers will send their misclassified workers an IRS Form 1099-Misc at the end of their year, rather than a W-2 Form.  The employer’s designation of the worker as an independent contractor does not determine whether a worker is legally classified as an independent contractor.  Under federal law, courts look at the overall substance of the relationship between the employer and the worker.  Courts take into consideration all evidence of control of the employer and independence of the worker.   

Workers are not independent contractors just because they signed an independent contractor agreement. Employers commonly require their workers to sign an independent contractor agreement stating that the worker understands that she is an independent contractor. However, if the employer treats the worker like an employee, no contract will allow him to break the law.  

Workers are not independent contractors just because they were required to set up an independent business in order to do the work. Employers offer try to skirt the law by having their workers set up independent businesses. However, this tactic does not necessarily turn an employee into an independent contractor where the employers controls the way that the work is performed.

Independent contractor abuse is most prevalent among the following groups of employees:

Construction Workers

Cable Installers

Delivery Drivers

 

Staffing Agency Workers

Tennis Pros

Exotic Dancers

 

Federal law regarding independent contractors provides the minimum requirements that employers must satisfy. Some state laws define independent contractors more narrowly, provide for longer statutes of limitations, and impose harsher penalties for violations. An employer must satisfy the exemption requirements for both federal law and the state where his workers are employed.   

If you think your employer has improperly classified you as an independent contractor, contact the Marlborough Law Firm today for a free consultation.

Wednesday, 25 September 2013 04:08

Employee Misclassification: Exempt Employee Abuse

One way that employers cheat their workers out of minimum wage and overtime pay is by falsely claiming that their workers are “exempt” from laws that guarantee those rights to workers.

This practice of misclassifying employees as exempt from the laws that are to protect them is illegal under federal law and the laws of many states. These laws require the employer, not the employee, to prove that a worker fits into one of the exemptions recognized by law.

The most common exemptions are the administrative, professional and executive exemptions. Each exemption has very specific requirements that must be met in order for an employee to be considered exempt.  

Employers use different ways of tricking their workers into thinking they are exempt from minimum wage and overtime protections. Here is what you should know about exempt employees:

Workers are not exempt just because they receive a salary. An exempt salaried employee must receive a salary of at least $455 per week and their actual job duties must satisfy the strict requirements for the exemption that the employer claims is applicable.

Workers are not exempt just because they have a fancy job title or job description. Employers cannot get away with creating a job title that sounds like it fits into one of the exemptions when it does not.  In addition, the employee's job description is meaningless if it does not reflect the actual responsibilities of the job.

Workers who are exempt under federal law, may not be exempt under state law. The federal law regarding exemptions from minimum wage and overtime provide the minimum requirements that employers must satisfy.  State laws often provide stronger protections including higher salary requirements, longer statutes of limitations, harsher penalties or more stringent exemption requirements.  An employer subject to the federal law, must satisfy the exemption requirements for both federal and state law.  

If you think your employer has misclassified you as an exempt employee and failed to pay you overtime or minimum wage, contact the Marlborough Law Firm today for a free consultation.

Wednesday, 25 September 2013 00:05

Unpaid Internships

Exploitation of interns has been going on for decades. In recent tough economic times, employers have cut costs by increasing their use of unpaid interns at the expense of paid employees. Employers in the arts, entertainment, media and fashion industries have had little difficulty finding people willing to work for free in order to break into the business.  Many of these internships violate federal and state wage and hour laws.  

While a person may volunteer to work for a non-profit organization or a government entity, for-profit companies are not permitted to use unpaid volunteers unless they meet the very stringent requirements for unpaid internships.

Illegal unpaid internships are bad for America for a number of reasons. Employers who exploit free labor use those interns to keep wages low and unemployment rates high by displacing workers.  Moreover, they favor only those with the means to work without pay and exclude people who can't afford to work for free.  Thanks to a renewed interest in the problem, the days of unpaid internship exploitation may be coming to an end.

If you think you may have worked in an illegal unpaid internship position, contact the Marlborough Law Firm for a free consultation.

Tuesday, 24 September 2013 16:54

Minimum Wage Theft

The federal minimum wage is the lowest hourly wage that an employer is permitted to pay its employees. There are a few exceptions to the minimum wage protection for tipped employees, minors, sheltered workshop employees and other workers.

The Tipped Minimum Wage

There is a substandard minimum wage for tipped employees such as waiters and bartenders.  Under federal law the tipped minimum wage is $2.13 per hour.  In New York, the tipped minimum wage is $7.50 per hour for service workers and higher for tipped workers in other industries.  Some states do not permit employers to pay their tipped employees less than the state's minimum wage under any circumstances. 

Where the tipped minimum wage applies, an employer is required to make sure that the tipped worker receives at least the full minimum wage of $7.25 or more, when the worker's tips are included.  If the worker does not receive at least the full minimum wage, the employer is required to make up the difference.

The current federal minimum wage is $7.25 per hour. Several states have a higher minimum wage. For example, the citizens of New Jersey recently voted to amend their state constitution to raise the minimum wage to $8.44 per hour and provide for automatic increases in the future.  The minimum wage for workers in New York State was recently increased to $10.00 hour for workers in Long island and Westchester County and between $10.50 and $11.00 per hours for workers in New York City.

Employers violate the minimum wage law in a number of ways, such as:

Refusing to pay the minimum wage to employees who are entitled to it.

Misclassifying whole groups of workers and failing to pay them the minimum wage.  This includes employees misclassified as independent contractors and unpaid interns.    

Failing to pay tipped employees the tipped minimum wage of $2.13 per hour or failing to ensure that those employees receive at least the full minimum wage of $7.25 per hour after accounting for tips. 

Requiring employees to pay for their own expenses such as equipment or uniforms.  A minimum wage violation can occur when the cost of those items is subtracted from the employee's wages results in the employee receiving less than the minimum wage. 

If you believe that your employer has failed to pay you the minimum wage required by law, contact the Marlborough Law Firm for a free consultation.

Wednesday, 25 September 2013 00:53

Overtime

Federal law protects most employees’ right to overtime compensation when working more than forty hours in a workweek. The required overtime rate is 1.5 times the workers regular hourly rate. The law includes a limited number of exemptions for certain workers. 

Employers use a number of illegal methods to avoid the payment of overtime. Some of the most common scams include:

Employee Misclassification. Misclassifying workers as independent contractors rather than employees or misclassifyifying employees as exempt from overtime laws when they are not.

Creating False Records. The employer, not the employee is responsible for making sure that time records are detailed and accurate. Manipulating how time is recorded is a common method of avoiding the payment of overtime.  The three common forms of records fraud are:

Requiring or permitting non-exempt workers to work off-the-clock before or after they begin recording their time. Employers cannot tell their employees to punch out and keep working. Employers cannot tell their workers to show up for work and then wait before punching in.

Time shaving or falsififying time records to make them appear as though employees worked less than forty hours in a workweek.

Requiring non-exempt employees to record no more than forty hours of work, regardless of the number of hours they actually worked.

Many states have stronger overtime protections than that provided by federal law. For example, state law may require that workers begin receiving overtime after an eight hour workday.  In addition, many states have more stringent definitions for independent contractors and/or exempt employees.

If you think you have been the victim of an overtime scam, contact the Marlborough Law Firm today for a free consultation.

Tuesday, 24 September 2013 16:52

Tip Stealing

According to the U.S. Department of Labor “a tip is the sole property of the tipped employee …. [Federal law] prohibits any arrangement between the employer and the tipped employee whereby any part of the tip received becomes the property of the employer.”

butler
Attention Banquet Servers

Many banquet companies charge customers a 15-22% mandatory service charge to their customers' bills.  Rather than distribute those charges to the service staff, the employers often keep the money for themselves.   

Several states including New York, recognize that these charges are gratuities belonging to the service staff, where a reasonable customer would interpret the charge as a gratuity.  Employers who retain the service charges under those circumstances may be stealing thousands of dollars per event from their waitstaff employees.   

Fortunately, New York has a six-year statute of limitations for these claims.  This means that workers may be entitled to all of the tips that their employer stole from them during the last six years. 

Waiters, bartenders and other tipped employees in the service industry survive on the tips that they earn. In fact, federal law permits employers to pay their tipped employees a minimum wage of only $2.13 per hour. The rationale for a substandard minimum wage is that when the service employee’s tips are included in their earnings, they will make at least the minimum wage. When employers do not earn at least minimum wage including their tips, the law requires that the employer make up the difference. 

Employers steal wages and tips from tipped workers through a number of schemes including:

Side Work. Tipped pay is for tip generating work, serving customers.  When a substantial amount of a tipped worker's time is spent performing non-tip producing work, the employer must pay at least the full minimum wage for that time.  No one should be paid $2.13 per hour to clean bathrooms.

Illegal Tip Pool Arrangements.  Tips may be shared among tipped employees, including bartenders, servers and food runners.  Tip pools requiring workers to share their tips with managers, cooks, dishwashers and other traditionally non-tipped employees may be found to be illegal.

Breakages, Walkouts and Shortages. Employers cannot take a worker's tips to compensate for glass breakage or when customers leave without paying their bills.

Off-the-Clock Work Tipped employees cannot be required to work off-the-clock, performing pre- and post-shift work without being paid.  In some settings, tipped employees are more likely than other workers to be subject to time shaving, where employers fraudulent cut hours from employee time records. Because their hourly wage is so low, many employers think that tipped employees  are less likely to complain about losing thier hourly pay or even notice when their time records are fraudulently altered. 

Credit Card Fees.  Tipped employees cannot be charged the full credit card fee on a patron's bill.  At most they can be responsible for the portion of the charge representing the tips.

Training.  Tipped employees must be paid for training when they are not earning tips.

Many states have law that are more protective of tipped employees.  For example, in New York and several other states, mandatory service charges may be treated as tips which must be paid to the service staff.  In addition, many states have a higher tipped minimum wage.  In New York, the tipped minimum wage is currently $7.50 per hour or more.  Other states have no special minimum wage for tipped employees.  Employers in those states are required to pay the service staff the full minimum wage under state law.   

If you think you are a tipped employee who has been the victim of wage theft, contact the Marlborough Law Firm today for a free consultation.

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"I have a message for those employers who break this nation's labor laws and prey on vulnerable workers: It ends today."

 - Hilda Solis, United States Secretary of Labor (2009-2013)

Why Choose Us

We have the experience, passion and commitment that it takes to litigate complex wage theft cases and consumer class action casesbr.

We concentrate our practice on class actions and seek recovery for as many workers as possible.

We accept most of our cases on a contingency fee basis, which means that you will not be required to pay anything unless your case is successful.

Meet The Team

Christopher Marlborough has been litigating class action cases since 2007. He is a former Chair of the Labor and Employment Committee of the Nassau County Bar Association.

Jennifer Marlborough is a seasoned attorney with more than 14 years of litigation experience.

Chris founded the Marlborough Law Firm in 2013 to continue his fight against corporate wage theft and consumer fraud practices. 

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If you think you may be the victim of wage theft or consumer fraud, do not hesitate to contact us. Consultations are always free.  


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