Fighting for American Workers

Types of Wage Theft

Christopher Marlborough

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Chris was appointed Vice Chair of the Nassau County Bar Association for its upcoming term.  He will be serving alongside Committee Chairman Jeffrey M. Schlosseberg, Of Counsel with Jackson Lewis, P.C..  Chris responded enthusiastically to the appointment, saying "It is always an honor to be recognized by one's peers. I am particularly honored by this appointment, because the Committee includes some of the finest labor and employment attorneys in the country.  I have appreciated the diversity of viewpoiints expressed at the Committee meetings and look forward to contributing more actively as Vice Chair."  The one-year term runs from fall of 2014 until the summer of 2015.  

The Buffalo Jills NFL cheerleaders’ class action lawsuit against Buffalo Bills, Inc. (the “Bills”), Citadel Communications Company, Ltd (“Citadel”) and Stephanie Mateczun, president of Stejon Productions Corp. (“Stejon”) will move forward after an Erie County judge dismissed in their entirety two motions to dismiss by the Bills and Citadel.

The action was filed as a class action on April 22, 2014 and alleges that the Jills’ employers failed to pay them minimum wage and misclassified them as independent contractors.  Defendant Bills filed a motion to be dismissed from the action, arguing that it was not the Jills’ employer because it contracted with separate companies that managed the Jills.  Moreover, Citadel which managed the Jills until 2012 claimed that the Jills were not entitled to minimum wage because they were not employees and they signed agreements stating that they were independent contractors.

Plaintiff responded by arguing that the Jills were employees rather than independent contractors and that the Bills exerted control over the Jills.  Moreover, Plaintiff noted that the agreement between the Bills and Citadel, approved and signed by NFL Commissioner, Roger Goodell, incorporated a mandatory waiver, release and independent contractor agreement, which specifically provided that the Jills would not be paid for Buffalo Bills home games.  

On July 31, 2014, the Honorable Judge Timothy J. Drury, New York State Supreme Court Judge issued a decision denying both of the motions in their entirety.  In its decision the Court noted that,

The minute control that Citadel and Stejon exercised over the work of the cheerleaders supports the conclusion that they were not independent contractors but employees. The Bills insisted that Citadel and Stejon obtain the agreement from each of the cheerleaders that they were independent contractors and the Bills directed that the agreements be returned promptly to them.  These facts are further indication of the control the Bill exercised over the Jills cheerleaders despite the fact that they were in the nominal employment of the subcontractors.

According to Mateczun, the Bills had agreed to supplement the wages of the Jills for the 2014 season, but reneged on that agreement after the lawsuit was filed.  Mateczun claims that she was forced to shut down the operations of the Jills as a result. 

The lawyers on the case responded enthusiastically to the decision.  Christopher Marlborough, of the Marlborough Law Firm, P.C. said, “We are pleased that Judge Drury ruled in our favor and we are looking forward to litigating this case.  We would be even more pleased if the defendants would end the cheerleader lockout and resume operations of the Jills while the case is pending.  The cheerleaders and the fans deserve better.”

Shane Rowley, of Levi & Korsinsky LLP noted, “We were shocked when we saw that Roger Goodell himself approved the agreement which required that the Jills would not be paid for working at the Bills home games.  We intend to fully explore the NFL’s involvement in this scheme.”    

Andrea L. Sammarco of The Sammarco Law Firm, LLP, noted “Buffalo was the home of the historic NFL Cheerleaders’ Association, the first and only labor union formed to address unfair workplace practices for cheerleaders.  It is only fitting that the Jills should rise once again to take a stand.”

On August, 23, 2014, the Bills face their first pre-season home game against the Tampa Bay Buccaneers.  For the first time in 47 years the Buffalo Jills will not be cheering at the game because their employers won’t pay them minimum wage of $8.00 per hour. 

A copy of Judge Drurys's decision and the Agreement approved by Roger Goodell are attached below.


Wednesday, 21 May 2014 13:32

A Cautionary Tale for Restauranteurs

The Brothers Grimm were renowned for recording cautionary folklore tales. For example, the story of Hansel and Gretel teaches us not to wander too far from home and to think twice before leaving a trail of breadcrumbs. Recently, another cautionary tale has been told by federal prosecutors concerning Republican Congressman Michael Grimm. Restaurateurs who steal their workers’ wages should take heed.

This Grimm tale was covered in a recent Huffington Post article entitled Wage Theft is Grimm Business, written by New York City Councilman Rory Lancman. The article notes that “Basically, Congressman Grimm may be going to jail for wage theft.”

This somewhat of an oversimplification, Mr. Grimm was not criminally charged with wage theft. Several states, including New York and California are aggressively enforcing criminal laws against wage theft, but federal law does not provide for any criminal penalties for wage theft.

Nevertheless, Mr. Grimm was indicted on April 28, 2014 on twenty criminal counts in federal court relating to his alleged wage theft practices.  Those charges include conspiracy to defraud the United States, preparation of fraudulent tax returns, health care fraud, wire fraud, mail fraud, perjury and obstruction of an administrative proceeding.

Congressman Grimm’s alleged scheme to defraud the government unfolded in the course of a civil wage theft lawsuit brought by two former employees of Healthalicious, a restaurant in upper Manhattan owned by Grimm, filed in federal court in December 2011. The complaint in that case alleged that Grimm failed to pay the plaintiffs and other Healthalicious workers minimum wage and overtime required by federal law and failed to pay them minimum wage, overtime and spread of hours premium pay required by New York State law.

The civil wage theft case was settled confidentially in March 2013, two months after the Congressman provided deposition testimony in the case. The evidence obtained in the civil case left a trail of breadcrumbs for federal prosecutors to follow.

The criminal fraud charges against Grimm stem from his alleged failure to report nearly $1,000,000 in taxable income and his alleged scheme to pay his workers in cash “off the books” by failing to report those cash wages to federal and state authorities, thereby lowering the restaurant’s payroll tax and worker’s compensation insurance costs.

In addition, the perjury and obstruction charges concern Grimm’s alleged false testimony in the civil wage theft case. The government claims that “in January 2013, while a member of Congress, GRIMM lied under oath during a civil deposition about his role in operating the restaurant, including falsely denying that he paid Healthalicious’ workers in cash.”

Councilman Lancman correctly points out that wage theft "doesn’t merely hurt the cheated worker; taxpayers get fleeced, too. This is where Congressman Grimm finds himself in hot water. The federal government loses Social Security and Medicare revenue. State workers' compensation and unemployment insurance systems become stretched, in some cases to the brink of insolvency. Governments at all levels lose income tax revenue.” 

Councilman Lancman bookends his article with the following opening and closing comments: "[i]f Al Capone introduced Americans to the seriousness of tax evasion, then hopefully Michael Grimm's indictment will do the same for the seriousness of wage theft.” and “[w]hile tax, wire and mail fraud are the mainstays of federal white collar prosecutions, the justice department's willingness to apply those heavy hammers essentially in defense of protecting wages and the integrity of our wage-based retirement and income security system should remind all employers that cheating working people is serious business.” 

I couldn’t have said it better myself.  Wage thieves beware.

Wednesday, 23 April 2014 14:21

Marlborough Law Firm In the Press

News Coverage of the Buffalo Bills Cheerleaders Class Action

Class Certification Order Affirmed on Appeal

Buffalo News October 2017 Appellate Court Upholds Buffalo Jills' Right to Pursue Lawsuit Against Bills, NFL by Melinda Miller

The Cheerleaders' Fair Pay Act, Proposed Legislation Inspired by the Buffalo Jills' Wage Theft Lawsuits

Buffalo Jills Bill

WNYC The Brian Lehrer Show: Cheering on NFL Teams for Less Than Minimum Wage

CNN: Law Would Force Pro Teams To Pay Cheerleaders by Chris Isidore

NY Daily News: State Lawmaker Wants New York Sports Teams To Pay Fair Wages To Cheerleaders  by Kenneth Lovett

Buffalo News: Seeking A Law So Jills Can Get A Basic Right  by Denise Jewell Gee

WGRZ TV News: Buffalo Jills Lawsuit Inspires New Bill In Albany 

WHEC Rochester, NY: 'Cheerleaders' Fair Pay Act' Being Considered In Albany After Buffalo Jills Lawsuit

Albany Times Union: Bill Would Extend Labor Benefits to Pro Cheerleaqders  by Matthew Hamilton

Capital Nw York: Assemblywoman to introduce ‘Cheerleaders’ Fair Pay Act'  by Laura Nahmias

WKBW Eyewitness News: Buffalo Jills Lawsuit Prompts New Bill  by Joanna Pascer

Buffalo Jills Screenshot Channel 2 News

WGRZ-TV 2 News: Judge Denies NFL's Motion To Dismiss Jills Lawsuit  

NY Times: Buffalo Bills Cheerleaders’ Routine: No Wages and No Respect  by Michael Powell The Economics of NFL Cheerleaders: What Are They Worth? by Ira Boudway

Business Insider: NFL Commissioner Says He Knows Nothing About Cheerleader Pay by Josh Eidelson

Business Insider: Subpoena Could Drag the NFL Into Cheerleader Wage Theft Cases by Josh Eidelson

Business Insider: NFL Cheerleaders Got An Early Advantage In Their Lawsuit Against The Buffalo Bills by Allan Smith  Tanning, Gym and Surgery, Ex-Cheerleader Unloads to Salon  by Josh Eidelson

Buffalo News:  Jills Management Blames Bills For Lack Of Support In Face of Lawsuit  By James Staas

HBO Real Sports:  NFL Cheerleaders with Andrea Kremer


News Coverage of the Memon Doria Discount Stores Lawsuit

NY Daily News: Workers at Dollar Store Chain Claim to have Endured ‘Sweatshop Wages and Conditions’ in $2M lawsuit by Keldy Ortiz and Stephen Rex Brown

 Bergen Discount owner Michael Memon, 70, says Laguna is 'a criminal.'



News Coverage of the Call-A-Head Class Action Wage Theft Lawsuit

NY Daily News: City’s Top Porta-Potty Company Allegedly Treats Workers Like #2, Fails To Pay For Overtime by Stephen Rex Brown

Call A Head3



News Coverage of the 2 Bros Pizza Class Action Wage Theft Lawsuit

Pizza Snob Image

photo courtesy of

WPIX-TV: Workers File Lawsuit Against Popular Chain 2 Bros. Pizza by Ann Mercagliano

NY Daily News:  Workers File Class Action Lawsuit Against 2 Bros. Pizza, Say They Earned Less Than Minimum Wage And Weren't Paid Their Overtime by Stephen Rex Brown and Dareh Gregorian

AM New York: 2 Bros. Pizza Accused Of Building 'Dollar Pizza Empire' On Backs Of Workers by Christian Salazar

Gothamist: Underpaid Workers Sue 2 Bros Pizza For Millions In Backpay by Emma Whitford

Refinery29: Your $1 Pizza Slice May Be Costing Someone Else A Lot More by Nina Wolpow


News Coverage of the Oheka Castle Workers Class Action Wage Theft Lawsuit

New York Daily News: Gary Melius Sued By Former Server At Oheka Castle Back For Back Pay  by John Marzulli

New York Newsday:  Former Oheka Castle Bartender Files Suit Against Gay Melius  by Carrie Mason Draffen

New York Magaziine:  Meet Gary Melius, The Long Island Power Broker  by Joe Coscarelli  Not a Good Week For A Modern Gatsby  by Nick Divito


Insider Exclusive: Season One, Episode 11.  The Global Vision Avacor Fraud 

As an associate at his former law firm, Chris was featured on the Insider Exclusive program as part of the "tenacious and relentless" team of lawyers who obtained a $50 million judgment on behalf of all Califonia purchasers of Avacor, a phony hair restoration product. 

Insider Exclusive

UPDATED: MAY 9, 2014

You may have heard of the 2011 NFL lockout, when the owners of the 32 National Footbal League teams locked out the NFL players from team facilities and shut down league operations from March through July 2011 because they could not come to terms on a new collective bargaining agreement with their union, the NFL Player's Association.  Few, however, know the story of the 1995 and 2014 management lockouts of the Buffalo Bills cheerleading squad known as the Buffalo Jills.    

Since, 1967, the Buffalo Jills have been the official cheerleading squad for the Buffalo Bills NFL football team.  

For decades, the Jills were subject to illegal pay practices and unfair working conditions, including not being paid anything for long hours spent working at Buffalo Bills home games, practices and numerous personal appearances.  They also were required to sell posters of the Jills squad and provide modeling services for those posters without compensation. 

In the mid-1990's, the Jills fought back and worked collectively to improve their working conditions.  In 1995, the National Labor Relations Board determined that the Jills cheerleaders were employees not independent contractors and affirmed their right to vote to form a union.  The Decision and Direction of Election reads: 

The facts herein clearly establish that the cheerleaders are employees rather than independent contractors.  The Employer controls their rehearsal schedules, their costumes, their routines, the times and places of performances and requires each to maintain a specific weight.  The cheerleaders are not allowed to book their own performances and have no ability to employ or arrange for replacements.  The Employer places strict limits on their discretionary time, prohibiting fraternization with members of the Buffalo Bills team or staff, and requiring all their actions as an individual to reflect the Jills' organization. All significant business decisions are made by the Employer which alone decides if and when appearances are made as well as how much, if anything will be paid for the appearance.

In February 1995, the members of the Jills voted overwhelmingly (29-2) in favor of making the National Football League Cheerleaders Association the first and only NFL cheerleaders labor union.  For the first time in Jills' history, the unionized Jills received cash compensation for working the Buffalo Bills games and aspired to encourage other NFL cheerleaders to join their union.   

The Jills employer responded bitterly to the formation of the union, stating, "to me, jumping around on the sidelines isn't really work. It isn't labor at all" and "It's not like they work in the coal mines.  They've never been instructed to stand under 3,000-degree iron ore in a steel mill."

The Jills' historic success did not last long.  WIithin months, the Jills filed a grievance with the National Labor Relations Board after their employer cancelled the Jills' public appearances and failed to notify them of upcoming tryouts in an effort to keep these uppity women off the squad and thwart their efforts to receive a fair day's pay for a fair days work.  After this management lockout, their employer then folded the corporation that managed the Jills and they struggled to find a new sponsor.  The Jills found a temporary sponsor after merging with the International Brotherhood of Electrical Workers, also known as the IBEW.

In 1996, the Jills were forced to dissolve the union as a condition of obtaining a new sponsor.  Many of the improvements in the working and pay conditions that the unionized Jills had worked so hard to achieve were rolled back by management in the ensuing years.  In 1996, one member of the Jills was Stephanie Mateczun, who is now the Jills' Cheerleading Co-ordinator and President and CEO of the corporation that manages the Jills.   

On April 22, 2014, Caitlin Ferrari, through her attorneys Christopher Marlborough of the Marlborough Law Firm, P.C. and Shane Rowley of Levi & Korsinsky, LLP filed a class action lawsuit challenging the pay practices of her employers.  According to the class action complaint, by the time Ms. Ferrari joined the Jills in 2009, the Jills were not being paid for participating in Buffalo Bills games, cheerleading practices, numerous personal appearances, modeling sessions, or auditions required to stay on the team.  They were also required to provide "professional instruction" to young girls in the lucrative Junior Jills cheerleading clinic program.

The complaint alleges that defendants failed to pay Ms. Ferrari and her fellow Buffalo Jills cheerleaders and non-performing ambassadors minimum wage for all hours worked and spread of hours premium pay for working more than ten hours in a single workday.  Moreover, the Complaint alleges that Ms. Ferrari and other Jills were required to pay more than $500 for their own uniforms and to pay for other expenses that should have been paid by their employer and to purchase Jills swimsuit calendars and event tickets to sell on their own time.

Another lawsuit containing similar allegations was filed by five former Jills on the same day as a non-representative action.

On March 24, 2014, two days after the lawsuits were filed, Mateczun announced that her company was suspending all operations of the Jills pending the outcome of litigation.  Once again, the Jills were out of work due to another management lockout.

Mateczun later admitted that the Buffalo Bills have been pulling the strings of the Buffalo Jills enterprise all along, stating, "If people believe they don’t maintain influence and control over every part of their operation, including their cheerleaders, they are mistaken."  Mateczun's lawyer also noted that the Buffalo Bills had offered to supplement the Jills' pay for the 2014 NFL season weeks before the lawsuit was filed, but withdrew that commitment to fund the squad in light of pending litigation. 

On May 8, 2014, the NFL held its annual Draft Day at which the Jills traditionally particpate in support of the Buffalo Bills.  However, due to the management lockout, the Jills were benched for this event.  Mateczun's lawyer commented, "[t]hat is a day that the Jills would ordinarily be expected by the Buffalo Bills to participate in their promotional activities around Draft Day.  We are not going to conduct business as usual as long as these legal issues remain unresolved.

On May 9, 2014, Ms. Ferrari filed an amended complaint adding new allegations concerning the Buffalo Bills control over the Jills and the management lockout.

Like her predecessors, the heroic women of the 1995 -1996 Buffalo Jills, Ms. Ferrari understands the power of collective action.  She filed her case as a class action and will be seeking court certification of a class including all current and former Buffalo Jills since April 22, 2008.

Ms. Ferrari wants to see the Buffalo Jills prosper and continue to support the Buffalo Bills on and off the field, while ensuring that she and other class members are compensated fairly and in accordance with the law for the substantial amount of work that they have provided to their employers.

If you have any information about the employment practices concerning the Buffalo Jills or have any questions about the case, please contact Christopher Marlborough: This email address is being protected from spambots. You need JavaScript enabled to view it. or call (212) 991-8960. 

A Copy of Ms. Ferrari's Amended Complaint is Attached Below.

Friday, 18 April 2014 04:09

Wage Theft: It's Something to Yelp About

 The U.S. Department of Labor has filed complaints against seven Long Island restaurants for failure to pay back wages and overtime to hundreds of workers. The Defendants in those cases have agreed to pay more than $1.7 million in back wages, damages and penalties.

Hats off to Dan O'Regan of Long Island Business News and Tom Incantalupo of for their coverage of this issue.

Here are the names of the restaurants and their respective pages.

Kashi Sushi and Steak House, Rockville Centre, NY

Crystal Garden Chinese Buffet, Riverhead, NY

Crystal Garden, Ronkonkoma, NY

Good Taste Buffet, Commack, NY

Kumo Sushi and Steakhouse, Stony Brook, NY

Nikishi Hibachi and Sushi, Selden, NY

Hotoke Japanese Steakhouse, Smithtown, NY

I like a nice steak but I will not be patronizing any of these establishments. Allegations of systematic and pervasive wage theft make me lose my appetite.

Last week, I attended a panel discussion concerning recent efforts by the alt labor movement to push back against poverty level wages and worker oppression.  Titled: Alt Labor Rising: Organizing Wal-Mart and the Fast Food IndustryThe panel was moderated by Salon Staff Writer, Josh Eidelson and sponsored by public policy organization Demos.

The discussion commemorated the one-year anniversary of the first Wal-Mart employee walkout in which workers demanded to be paid a living wage. Since that time, there have been a number of walkouts in Wal-Mart stores across the country, fast food workers have held walkouts in sixty cities, and the alt labor movement continues to grow. 

Tomorrow’s Black Friday is expected to include the largest Wal-Mart employee walkout ever and will be accompanied by protests at Wal-Mart stores across the country.  Information about protests can be found here:

The Wal-Mart Movement

Patricia Locks was a panelist at the Demos event and a longtime employee of Wal-Mart.  She participated in the front lines of the Wal-Mart walkouts.  Patricia is part of the organization United for Respect at Wal-Mart (OUR Wal-Mart).  They are fighting to be paid a living wage and for Wal-Mart to stop retaliating against workers who speak up.  Wal-Mart has allegedly fired or disciplined one hundred OUR Wal-Mart leaders and Patricia reported observing Wal-Mart’s retaliation first hand.    

On November 15, the General Counsel of the National Labor Relations Board found  merit in allegations that Wal-Mart: 1) unlawfully threatened employees with reprisal if they engaged in strikes on Black Friday last year, 2) “unlawfully threatened, disciplined, and/or terminated employees for having engaged in legally protected strikes and protests,” and 3) “unlawfully threatened, surveilled, disciplined, and/or terminated employees in anticipation of or in response to employees’ other protected concerted activities.”  The Office of the General Counsel has authorized the filing of a complaint against Wal-Mart for these alleged violations of the National Labor Relations Act.

While fear of unlawful retaliation by Wal-Mart may be limiting participation in its employees efforts to organize, other workers have continued to speak out. 

The Fast Food Movement       

Naquasha LeGrand is a member of Fast Food Forward, a movement led by fast food workers to improve wages and working conditions in the industry.  She participated in the first wave of fast food walkouts earlier this year, when she walked off her job at KFC.   Naquasha discussed her employer’s wage theft practices, such as automatically deducting time from her pay records for breaks that she never took.    

In the short time she has been participating in the walkouts, she has observed its exponential growth.  While the first action was small with about two hundred workers walking out on their jobs, three times as many workers participated in the second walkout.  The third walkout expanded to twelve cities across the country and the fourth to sixty cities. 

The Black Friday Creep

Patricia’s noted that she would be spending her Thanksgiving holiday working at Wal-Mart. She is not alone. The company has decided to follow a recent trend among retailers by starting its so-called “Black Friday” specials a day early and putting 1.1 million of its employees to work on Thanksgiving to handle the customer volume.

Wal-Mart is among a number of retailers that that have failed to take a stand against the “Black Friday creep” in to what will hopefully remain a traditional family holiday.  The Black Friday creep has bled into the fast food industry as well, where restaurants are opening on Thanksgiving in order to profit from serving hungry holiday shoppers. 

CNN reported today on the story of Tony Rohr, a manager at a Pizza Hut restaurant who was allegedly fired for taking a stand against the Black Friday creep.  When he refused to open his store on Thanksgiving, he was instructed to write a letter of resignation.  Instead, Tony refused to quit, but was fired anyway after telling his employer the following:      

I accept that the refusal to comply with this greedy, immoral request means the end of my tenure with this company . . . I hope you realize that it is the people at the bottom of the totem pole that make your life possible.

After Tony’s story made national headlines, he was quickly offered his job back.  While exposing the employer’s conduct may have worked to get Tony his job back, shaming corporations for their oppressive conduct is not likely to stem the tide of the Thanksgiving creep on a larger scale.

I applaud Patricia, Naquasha, and Tony, for taking a stand to support worker’s rights.  I respect you guys, even if your employers don’t. Happy Thanksgiving.

The thieves received no jail time because they own the place.

Last June, an Illinois man was sentenced to three years in prison for walking out on a $70 restaurant bill. It should come as no surprise that “dining and dashing” is a crime, and most people understand that the practice should be treated as any other kind of theft. Sill, while the defendant had previous convictions on his record, the punishment seems rather severe. His sentence breaks down to a year in jail for every $23.

By that measure Tassos Strifas and George Strifas, cousins and co-owners of the Colony Diner in East Meadow, New York would have received more than 14,000 years in jail for stealing worker’s wages between January 2009 and March 2011 in connection with tens of thousands of meals served at the diner.

At one time, the Strifas’ faced up to four years in prison for their own form of dining and dashing. However, they copped a plea and received no jail time whatsoever.  Instead they were ordered to pay $338,000 in stolen wages and $163,000 in liquidated damages to their workers.

They were also required to pay $64,000 in back taxes and fines to the government. Wage thieves are also often tax cheats as well and the Strifas’ were no exception.   Not only were they stealing from their workers, they were also stealing from the government. The diner’s tax returns indicated that it operated with 11-15 workers, when they actually employed 35-40 employees in a given week. For more than half of their workers, the diner paid no payroll taxes and did not contribute to the unemployment and worker’s compensation systems.  

The two felons pleaded guilty in April to failing to pay wages, offering a false instrument for filing and falsifying business records. The latter two charges came to light after a search warrant revealed that the Colony Diner was cooking a lot more than french fries with mozzarella cheese, they were also cooking the books.   Authorities discovered two sets of books. One included falsified pay records while a second set of records including the actual hours and pay rates worked by the diner’s employees.

The case resulted from a joint investigation of the Nassau County, District Attorney’s Office and the U.S. and New York State Departments of Labor. “Labor laws exist to ensure that hard-working employees are paid every penny of their wages, as well as hold accountable unscrupulous bosses who steal from their workers,” Rice said in April.

Hats off to the investigators who uncovered the Strifas’ criminal scheme. I applaud the authorities’ efforts to get these workers their money back. However, until we see more employers receiving jail sentences commensurate with the crimes they commit, the deterrent for other thieves like the Strifas’ will be minimal.

While, 14,000 years may be an excessive jail sentence, seeing the Strifas’ do some time in the clink or losing their business license could have deterred unscrupulous employers from following in their footsteps. Here’s the message to wage thieves from this conviction: If the statute of limitations expires before you get caught, you are home free. If you are the rare employer who gets prosecuted for stealing wages, pay the money back with a small penalty and its business as usual. Opportunity missed.    #wagetheftperpwalk

Following every natural disaster, television screens are filled with images of heroic rescuers, victims of devastation, and looters. We feel proud for the woman who risks herself for others. Our sympathy goes to the victim for his loss. But for the looter, we reserve our derision. Hurricane Sandy was no exception.

District Attorneys promised to prosecute looting cases “to the fullest extent of the law” and proclaimed, “zero tolerance for looters.” Though most of the looting cases were subsequently thrown out of court, at least we all had something to rally against for a while.

Then we went back to our lives. We began to rebuild after the storm. And the real looting began.

Yesterday, New York Newsday reporters Keith Herbert and Sarah Creighton published a series of articles concerning employer wage theft in the wake of Hurricane Sandy. Creighton has been on the story since at least November 2012. At that time, she reported that some Long Island, New York municipalities were not requiring contractors on government clean-up projects to pay wages commensurate with local prevailing wages.

She and Herbert followed up with a second article in April 2013, when the District Attorneys of Nassau and Suffolk Counties issued a series of subpoenas to local governments for payroll records and contracts for Sandy clean-up projects to ensure compliance with New York’s prevailing wage laws.

According to the authors’ most recent series of stories, these government investigations have borne fruit. They expose rampant abuses in the industry including prevailing wage fraud, independent contractor fraud, and outright refusal to pay promised wages.

They reveal that hundreds of workers were potentially deprived of hundreds of thousands of dollars in wages and benefits due to violations of state labor laws. Moreover, they reported that several municipalities acknowledged that they failed to comply with their obligations under the law.

The alleged looters, on the other hand, aren’t saying much.

Prevailing Wage Violations

The focus of the Newsday series was compliance with New York’s prevailing wage law in the wake of Hurricane Sandy.

The law requires that contractors with state and local governments on construction projects pay their worker on par with those in the local community. The prevailing wage rates are determined according to a schedule based on union level wages and benefits.  

Prevailing wage laws encourage high quality workmanship by requiring wages high enough to attract competent workers. By taking wages out of the equation, prevailing wage laws organize competition around quality, productivity, and efficiency without encouraging contractors to low-ball bids on government contracts and underpay their employees to compensate for it.

The Newsday series notes that four out-of-state workers are awaiting a hearing before an administrative law judge to determine whether they are entitled to prevailing wages for their work clearing Long Island Rail Road lines for Custom Tree Care, an out of state subcontractor for Long Island-based Looks Great Services, Inc.   Looks Great has a number of municpal contracts which it claims are not subject to prevailing wage laws.  If successful, the New York Department of Labor estimates that the four workers will be entitled to about $60,000.

Nassau County District Attorney, Kathleen Rice found violations of the prevailing wage law in seven cases resulting in $424,000 owed to workers. Rice was quoted as saying, “We won’t tolerate unscrupulous businesses cheating workers on Long Island, whether it’s after a major disaster like Sandy, or during any other time of the year.”

As of late August, the New York Department of Labor had recovered $113,000 in back wages and benefits for workers as a result of their post-Sandy wage verification investigations.

New York Attorney General Eric Schneiderman recently reported that contractor Signal Restoration Services was ordered to pay more than $500,000 in back wages to its employees. In a press release, Schneiderman commented, "Employees who worked long hours to rebuild New York after Hurricane Sandy deserve fair wages and the fullest protection of the labor law."

Since Hurricane Sandy more than $2.2 million in back wages owed by contractors has been recovered.

The Politics of Prevailing Wage Law

It’s not just employers who need to be monitored, but local governments as well. Some strapped local governments don’t want to pay contracts that include prevailing wages. While adhering to prevailing wage laws during an emergency may costs governments money, it also prevents exploitations of low wage workers in devastated communities.

For some reason, politicians have seized on natural disasters as the perfect opportunities to scale back on worker’s rights by suspending prevailing wage laws in connection with those tragedies. In New Jersey, one legislator proposed a law that would exempt public works projects related to Hurricane Sandy relief from that state’s prevailing wage law. Fortunately, that legislation went nowhere.

In 2005, George W. Bush suspended the enforcement of the David-Beacon Act, the federal prevailing wage law, in areas hit by Hurricane Katrina. However, in the face of bipartisan pressure, Bush backed down and reinstated the law only six weeks later.

Creighton and Herbert note that some municipalities required provisions in their contracts that clean-up workers be paid the prevailing wage according to state law, while others did not. The Islip Deputy Town Attorney, Mike Walsh, reported receiving “pushback” about his insistence on ensuring that clean-up workers are paid a prevailing wage.

Independent Contractor Fraud

In a related article, the authors report on three Custom Tree Care workers who claim to have been misclassified as independent contractors.

Misclassifying employees as independent contractors is one way in which employers often avoid the payment of prevailing wages, overtime and other benefits to their workers. They also avoid the payment of payroll taxes, worker’s compensation insurance and other costs. This gives the wage thieves an unfair advantage over their competitors.

As Thomas Perez, U.S Secretary of Labor put it:     

“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.”

The independent contractor rules in New York can include a large number of factors. However, in 2010, the New York legislature responded to massive misclassification abuses in the construction industry by passing the Construction Industry Fair Play Act, which streamlined the test for workers in the industry. Under the new “ABC” test, a worker in the construction industry is an employee and not an independent contractor unless: A) the worker is free from the employer’s direction and control; B) the work performed is not the usual work done by the employer; and C) the worker has an independently established business.

Outright Wage Theft

The series further notes that, out-of state-laborers were allegedly lured to New York by employers with promises of high paying job. Only after they traveled to New York and began working, did these laborers learn that they would be paid less they were promised and less than they could have earned had they not relocated.

One worker traveled from Topeka, Kansas to New York to work for Custom Tree Care. He claims he was promised $20 per hour. However, when he received his fist paycheck, he was paid only $10.00 per hour and $15.00 for overtime. He complained to his foreman, to no avail. Several other workers told similar stories about their experience working for Custom Tree Care.   

Greg Gathers, CEO of Custom Tree Care declined comment for the Newsday story.

Saturday, 12 October 2013 01:31

What Is Wage Theft?

I am a class action wage theft attorney.  Many of my colleagues, family and friends are not familiar with the term wage theft.  In the legal field wage theft attorneys are generally known to practice wage and hour litigation.  It sounds much nicer than calling it what it is: stealing wages from workers.

Stealing wages is nothing new, employers have been doing it to their workers for centuries.  I consulted my copy of Black’s Law Dictionary that I bought in law school.  However, the nation’s leading law dictionary was no help.  It did not have any entry at all for wage theft.

I then consulted a more authoritative source: Wikipedia.  Wikipedia describes wage theft as "the illegal withholding of wages or the denial of benefits that are rightfully owed to an employee."

That looks like a good working definition for the purposes of this blog, so let’s go with that. 

Why is wage theft treated differently from other kinds of theft?

The improper withholding of wages earned by a worker is theft of services.   If a kid sneaks into a movie theater without paying for it, he can be prosecuted for larceny.  Get caught jumping the turnstile in a New York City subway station and it will cost you $100, forty times the regular fare.  Moreover, people don’t think twice when companies press charges against their employees for embezzlement, taking company property or stealing cash from the till.  Why is it different when the victim is an employee and the thief is the company she works for?

I thought about whether there are any other crimes where the relationship of the victim to the perpetrator can be so decisive to the analysis.  I came up with the case of marital rape.  Historically, criminal laws exempted husbands from being convicted of raping their wives.  The origin of these laws has been traced to the idea that women are essentially the property of their husbands and marital rape was thus an impossibility.  As stated by Sir Matthew Hale, Chief Justice in England, marital rape could not be recognized since the wife “hath given up herself in this kind unto her husband, which she cannot retract.”  The effects of this policy persisted for centuries in the United States.   The criminalization of marital rape in the United States did not begin until the mid-1970s and by 1993 it was a crime in all 50 states; however, some exceptions for marital rape continued long after that.

I do not know if our blindness to wage theft is a relic of the European history of serfdom or some other aspect of the relationship that makes people think differently about it.  I do know that it is time to change the dialogue.

Are attitudes changing?

Hopefully it won’t take decades to turn the tide on wage theft.  Thanks to the hard work of a number of worker’s rights groups, politicians, media outlets, and concerned citizens, the wage theft crisis has received more recognition in recent years.  California and New York have enacted Wage Theft Prevention Acts and other states are following suit.  In New York a few employers have been criminally prosecuted for stealing their workers wages.  Yesterday, the New York Attorney General announced the arrest of the owner of a cleaning company who was charged with failure to pay wages under the state labor laws and retaliation.       

Rapists and thieves should be prosecuted without regard to their relationship to the victim.  When husbands rape their wives they should go to jail.  When an employer refuses to pay his workers in a manner that constitutes theft, he should be prosecuted as vigorously as any other thief. 

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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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10.0Christopher Marlborough

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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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