Neil H. Greenberg & Associates, P.C.

Frequently Asked Questions

My boss says I'm an independent contractor, but I work full time for him. Am I an independent contractor or am I really an employee?

It's not unusual for employers to claim employees as independent contractors. After all, it's cheaper for them- they pay lower taxes and benefits. But whether you are an employee or an independent contractor is a question of law. New York law presumes workers are employees. Basically, if your employer controls and directs the services you perform, you're an employee. You can be an employee even if your employer gives you a 1099 form instead of a W-2 form.

Is my employer required to give me break time to eat meals?

Yes. You're entitled to at least 30 minutes during the day (called “noon day”), for a meal if you work more than six hours during a calendar day. The “noon day” meal is recognized as extending from eleven o'clock until two o'clock in the afternoon. Every person employed for a period or shift of more than six hours starting between the hours of one o'clock in the afternoon and six o'clock in the morning shall be allowed at least sixty minutes for a meal period, at a time midway between the beginning and end of such employment.

During mealtime, you must be free of all your duties, and allowed to leave the premises. If you voluntarily waive your right to a meal, you must be paid for the working time.

My boss schedules me to work at least three hours in a day then sends me home early. How much should I get paid?

An employee who, by request or permission of the employer, reports for work on any day shall be paid for at least four hours, or the number of hours in the regularly scheduled shift, whichever is less, at the basic minimum hourly wage.

Can my boss use "compensatory time" (also known as comp time) instead of giving me overtime pay?

Your employer may not avoid paying you overtime in one work week by giving "comp time" during a different workweek.

However, there is no daily overtime pay requirement. So, your employer may grant you comp time for a given day, instead of overtime pay, during an individual workweek as long as the total number of hours worked for that week does not exceed forty without time-and-a-half pay.

What about commissions?

Commissions are considered wages when they are definitely determined and due and payable, with some exceptions made by courts on a case-by-case basis, such as for episodic commissions or those that are part of a separate voluntary plan. When they're not wages, courts typically treat commissions as contract claims.

What about severance pay?

It depends on the court. Some say severance is a wage because the term "wages" includes dismissal pay. Others say severance is not a wage because it is not "earned." When they're not wages, courts typically treat severance payments as a contract claim.

When should I get paid for travel time?

Ordinary travel to and from work is not considered working time. But you should receive pay for travel during the work day. You also may be entitled to pay for any additional commuting time necessary to get to alternate worksites.

What is a "prevailing wage"?

Prevailing wages are the hourly rates set for certain classifications of work on construction projects and several other types of public work. The rates may vary from project to project. Once a project is completed, each contractor, subcontractor or public body is required to submit a Statement of Compliance that affirms prevailing wage rates were paid.

Can my boss deduct money from my wages?

No deductions may be made from minimum wage, except those allowed for certain meals and lodging.

What is New York’s minimum wage?

Beginning December 31, 2013, New York State’s minimum wage increased in a series of three annual changes as follows: $8.00 from December 31, 2013- December 31, 2014, $8.75 from December 31, 2014- December 31, 2015, $9.00 after December 31, 2015.

What is the overtime rate?

One-and-a-half times the regular hourly rate for all work over 40 hours, unless you are an "exempt" employee.

My boss requires me to be on-site before and after my shift, but only pays me for the actual duty shift. Shouldn't I get paid for the extra time?

Yes. You must be compensated for all time you're required to be on-site or on duty. This includes the time spent at rollcalls, morning meetings and walking to workstations, or from the place where you put on required protective clothing.

Shouldn't I get overtime premiums for working on Sundays and holidays?

The overtime requirement is based on hours worked in a given payroll week. Thus, time-and-a-half, double-time — or any amount higher than the agreed rate — is not required simply because the work is performed after eight hours per day or on a Saturday or Sunday. Extra pay for working weekends or nights is a matter of agreement between the employer and the employee (or the employee's representative).

If I bring a claim against my employer, can they fire me?

Employers may not retaliate against you for asserting your rights under the Wage Act. New York law states that no employer shall penalize any employee for making a complaint to the employer, to the Commissioner of Labor, or to the Commissioner's representative, about any provision of the Labor Law.

Is there criminal liability for failure to pay wages?

New York has a statutory requirement that employers and their executives pay employees promptly or risk criminal penalties up to $20,000 in fines and one year in prison. Much like other jurisdictions, New York only imposes liability on executives who knowingly fail to pay wages or who knowingly allow their companies to do so.

How long must my employer keep records?

At least six years. New York law requires those records to contain the employee's name, address, occupation, as well as amount of wages paid and hours worked.

How long do I have to bring a claim against my employer?

In New York, you have six years to recover unpaid regular wages and overtime wages.

How much will it cost to represent me?

Neil H. Greenberg & Associates, P.C. typically works on a contingency fee basis- which means we don't get paid any attorney's fees unless there is a recovery for you. However, you are responsible for any out-of-pocket expenses incurred by a lawsuit. We at Neil H. Greenberg & Associates, P.C. have a long and successful track record representing employees. We'll meet with you, discuss your case, coordinate a strategy and file a complaint. We'll work hard to get your money as quickly as possible.

How do I become a client?

If you would like to speak to Neil H. Greenberg & Associates, P.C. about becoming a client, please call us at 1-866-546-4752 to set up an initial consultation, free of charge. We can also be reached via email at info@nhglaw.com by filling out our email contact form.

(516) 228-5100 | Massapequa, NY 11758(866) 546-4752 | New York, NY 10017