FAQs
Q: Lawyers in New York are very expensive. Who pays for my legal services and how much?
A: In lawsuits for wrongful termination, unpaid overtime and for discrimination, Robert Wisniewski represents clients on a contingency fee basis. This means that if there is no recovery for the client, the client pays no fee. Moreover, both state and federal laws provide that an employee who wins at trial is entitled to have his or her attorney fees and costs paid by the employer. After a verdict in favor of the client, the court determines the Firm’s fee based on the time spent and several other factors, and enters a separate judgement against the employer. In commercial litigation cases, Robert Wisniewski P.C. represents clients at competitive rates on an hourly rate basis. In certain commercial litigation cases, the firm may also agree to represent clients on a contingency fee basis.
A: In lawsuits for wrongful termination, unpaid overtime and for discrimination, Robert Wisniewski represents clients on a contingency fee basis. This means that if there is no recovery for the client, the client pays no fee. Moreover, both state and federal laws provide that an employee who wins at trial is entitled to have his or her attorney fees and costs paid by the employer. After a verdict in favor of the client, the court determines the Firm’s fee based on the time spent and several other factors, and enters a separate judgement against the employer. In commercial litigation cases, Robert Wisniewski P.C. represents clients at competitive rates on an hourly rate basis. In certain commercial litigation cases, the firm may also agree to represent clients on a contingency fee basis.
Q: I already have a case in court. Can I change my attorney in the middle of the case?
A: In almost all circumstances, you may change attorneys even if your case is already ongoing. In fact, there is nothing wrong or unusual with asking another attorney for a second opinion about the prosecution of an ongoing case or in changing your attorney altogether. If you believe that the attorney you originally hired is not doing a good job, or that you find it difficult to cooperate with your attorney, or that there are unexplained problems or unusual delays in your case, it is never too late to ask another attorney for a second opinion and, if necessary, to change attorneys. You do not have to pay any fees to change your attorney. Contact Robert Wisniewski P.C. at 212-267-2102 for a complimentary review of an ongoing case and to discuss your possible attorney change. In appropriate circumstances, if you so decide, we will take care of removing your existing attorney and take over the case.
A: In almost all circumstances, you may change attorneys even if your case is already ongoing. In fact, there is nothing wrong or unusual with asking another attorney for a second opinion about the prosecution of an ongoing case or in changing your attorney altogether. If you believe that the attorney you originally hired is not doing a good job, or that you find it difficult to cooperate with your attorney, or that there are unexplained problems or unusual delays in your case, it is never too late to ask another attorney for a second opinion and, if necessary, to change attorneys. You do not have to pay any fees to change your attorney. Contact Robert Wisniewski P.C. at 212-267-2102 for a complimentary review of an ongoing case and to discuss your possible attorney change. In appropriate circumstances, if you so decide, we will take care of removing your existing attorney and take over the case.
Q: I did not get paid by my employer or I was discriminated against by my employer. If I sue my employer what will I be able to recover?
A: An employee who did not get paid for all hours worked or for overtime is entitled to recover not only unpaid wages and overtime wages but also statutory penalties equal to the underpaid amount (so-called liquidated damages), statutory interest and to have his or her attorney fees and costs paid by the employer. An employee who was discriminated against may recover, depending on the law under which he or she sues, back pay (that is his or her losses from the onset of discrimination to the time of trial), front pay ( future losses that he or she will suffer in the future, if there is no comparable employment), damages for pain and suffering, statutory damages, punitive damages, interest as well as have his or her attorney fees and costs paid by the employer. An employee may also request that the court restore him or her to the position held at the employer as a result of discrimination.
A: An employee who did not get paid for all hours worked or for overtime is entitled to recover not only unpaid wages and overtime wages but also statutory penalties equal to the underpaid amount (so-called liquidated damages), statutory interest and to have his or her attorney fees and costs paid by the employer. An employee who was discriminated against may recover, depending on the law under which he or she sues, back pay (that is his or her losses from the onset of discrimination to the time of trial), front pay ( future losses that he or she will suffer in the future, if there is no comparable employment), damages for pain and suffering, statutory damages, punitive damages, interest as well as have his or her attorney fees and costs paid by the employer. An employee may also request that the court restore him or her to the position held at the employer as a result of discrimination.
Q: I am not getting paid for all hours that I work. Am I entitled to be paid for those off-the-clock hours?
A: Yes, you are entitled to be paid for all off-the-clock hours. If your employer makes you work through a lunch break, or forces you to come to the company shop to load tools and materials onto vehicles but pays you only from the time you get to the job site, or forces you to clock out while you continue working, or even makes you come to work only to wait for an assignment (that is, engages you to be waiting), the employer must pay you for all the time you work, including these “off-the-clock” hours. The law provides that an hourly employee must be paid for all hours worked and, if he or she works more than forty (40) hours in a week, must be paid overtime, that is time and a half of the regular rate.
A: Yes, you are entitled to be paid for all off-the-clock hours. If your employer makes you work through a lunch break, or forces you to come to the company shop to load tools and materials onto vehicles but pays you only from the time you get to the job site, or forces you to clock out while you continue working, or even makes you come to work only to wait for an assignment (that is, engages you to be waiting), the employer must pay you for all the time you work, including these “off-the-clock” hours. The law provides that an hourly employee must be paid for all hours worked and, if he or she works more than forty (40) hours in a week, must be paid overtime, that is time and a half of the regular rate.
Q: What is overtime and am I entitled to it?
A: Overtime is premium pay at time and a half of regular hourly rate for work in excess of forty hours in a week to which non-exempt employees, generally tradesmen, laborers, mechanics, restaurant employees, most office employees. Union members may also be entitled to overtime or other premium pay in accordance with the collective bargaining agreement negotiated by their union, even if they do not work more than forty (40) hours in a week, such as time and a half pay for more than eight (8) hours of work in a day, or double time for work on Saturdays, Sundays or certain holidays.
A: Overtime is premium pay at time and a half of regular hourly rate for work in excess of forty hours in a week to which non-exempt employees, generally tradesmen, laborers, mechanics, restaurant employees, most office employees. Union members may also be entitled to overtime or other premium pay in accordance with the collective bargaining agreement negotiated by their union, even if they do not work more than forty (40) hours in a week, such as time and a half pay for more than eight (8) hours of work in a day, or double time for work on Saturdays, Sundays or certain holidays.
Q: I am being paid a salary but my employer deducts from my salary the time I am late or the few hours I take off during the day.
A: If you are a salaried employee, the employer must not reduce your salary by fractions of time less than one day, such as minutes you are late or several hours in a day that you take off, if you work the rest of that day. If the employer has a policy of deducting from salaried employees fractions of the day, your salaried status may be converted to that of an hourly employee and you are entitled to be paid not only the deducted time but also for all hours you worked. And if you worked more than forty (40) hours in one week, you are entitled to be paid at the overtime rate of time and a half of your regular rate.
A: If you are a salaried employee, the employer must not reduce your salary by fractions of time less than one day, such as minutes you are late or several hours in a day that you take off, if you work the rest of that day. If the employer has a policy of deducting from salaried employees fractions of the day, your salaried status may be converted to that of an hourly employee and you are entitled to be paid not only the deducted time but also for all hours you worked. And if you worked more than forty (40) hours in one week, you are entitled to be paid at the overtime rate of time and a half of your regular rate.
Q: I filed a complaint with, or settled with the employer through, the US Department of Labor, the NY Department of Labor, the New York City Comptroller’s Office or the New Jersey Department of Labor. Can I still sue the employer?
A: In certain situations, you can. The federal Department of Labor, the State Departments of Labor as well as the New York City Comptroller’s Office are authorized by law to prosecute complaints by employees against private employers for unpaid or underpaid wages and overtime wages as well as the failure by private employers to pay the so-called prevailing wages or living wages for work on government contracts. However, each of these agencies can only recover wages for the period limited by its jurisdiction. For example, the US Department of Labor may recover wages as well as prevailing wages for up to three years. So, if an employee in New York City worked for an employer for six years, when he files a complaint with the US Department of Labor, his complaint will be limited only to three years prior. If an employee files a complaint for prevailing wages with the City Comptroller’s Office, his claim will be jurisdictionally limited to two years prior. In state or federal court in New York and New Jersey, such an employee could recover for up to six (6) years of unpaid wages, unpaid overtime and unpaid prevailing wages. Contact our Robert Wisniewski P.C. at 212-267-2102 for a complimentary review of an ongoing case with any federal or state department of labor or the City Comptroller’s office. In appropriate circumstances, we will explore the possibility of filing a complaint in state or federal court to take advantage of longer periods for which employees can recover damages in court.
A: In certain situations, you can. The federal Department of Labor, the State Departments of Labor as well as the New York City Comptroller’s Office are authorized by law to prosecute complaints by employees against private employers for unpaid or underpaid wages and overtime wages as well as the failure by private employers to pay the so-called prevailing wages or living wages for work on government contracts. However, each of these agencies can only recover wages for the period limited by its jurisdiction. For example, the US Department of Labor may recover wages as well as prevailing wages for up to three years. So, if an employee in New York City worked for an employer for six years, when he files a complaint with the US Department of Labor, his complaint will be limited only to three years prior. If an employee files a complaint for prevailing wages with the City Comptroller’s Office, his claim will be jurisdictionally limited to two years prior. In state or federal court in New York and New Jersey, such an employee could recover for up to six (6) years of unpaid wages, unpaid overtime and unpaid prevailing wages. Contact our Robert Wisniewski P.C. at 212-267-2102 for a complimentary review of an ongoing case with any federal or state department of labor or the City Comptroller’s office. In appropriate circumstances, we will explore the possibility of filing a complaint in state or federal court to take advantage of longer periods for which employees can recover damages in court.
Q: I am an illegal immigrant and/or do not have a work permit in the US. Can I still go against my employer?
A: Yes you can. Robert Wisniewski has successfully represented literally hundreds of undocumented workers, that is those who come from other countries without documents that would entitle them to be legally employed in the United States. In general, courts allow undocumented workers who actually worked for an employer and did not get paid properly to recover underpaid or unpaid wages and overtime, and to be compensated for discrimination-related damages. In fact, in the jurisdictions in which the Firm practices, courts generally prohibit employers’ attorneys from asking questions about a worker’s immigration status or demanding proof of work authorization in the United States. Many illegal immigrants fear that their employer will report them to the immigration authorities or that they will be deported because they brought a lawsuit for unpaid wages and overtime or for discrimination. In over twenty years of representing hundreds of illegal or undocumented workers Robert Wisniewski is not aware of even one current or former client who was put in deportation proceedings because of a lawsuit he or she brought for unpaid wages, overtime or discrimination. Moreover, the immigration law imposes a duty on employers to verify the immigration status of every new employee and imposes severe penalties – both financial and jail time – on those who knowingly employ illegal workers. , employers who knowingly employed illegal or undocumented workers have no incentive whatsoever to report those whom they hired in violation of the immigration laws.
A: Yes you can. Robert Wisniewski has successfully represented literally hundreds of undocumented workers, that is those who come from other countries without documents that would entitle them to be legally employed in the United States. In general, courts allow undocumented workers who actually worked for an employer and did not get paid properly to recover underpaid or unpaid wages and overtime, and to be compensated for discrimination-related damages. In fact, in the jurisdictions in which the Firm practices, courts generally prohibit employers’ attorneys from asking questions about a worker’s immigration status or demanding proof of work authorization in the United States. Many illegal immigrants fear that their employer will report them to the immigration authorities or that they will be deported because they brought a lawsuit for unpaid wages and overtime or for discrimination. In over twenty years of representing hundreds of illegal or undocumented workers Robert Wisniewski is not aware of even one current or former client who was put in deportation proceedings because of a lawsuit he or she brought for unpaid wages, overtime or discrimination. Moreover, the immigration law imposes a duty on employers to verify the immigration status of every new employee and imposes severe penalties – both financial and jail time – on those who knowingly employ illegal workers. , employers who knowingly employed illegal or undocumented workers have no incentive whatsoever to report those whom they hired in violation of the immigration laws.
Q: I was paid in cash or I do not have pay stubs or any other evidence of my employment. Do I have a case against my employer?
A: Yes, you do. Both state and federal laws require employers to make and keep for up to six (6) years detailed records regarding employees’ pay, such as information about the rate of pay, the number of hours worked, as well as other miscellaneous payroll information. If the employer does not present such records in court, the solution is not to penalize the employee by denying him any recovery but to allow the employee to testify at trial based upon his or her general recollection as to the hours worked and the wages owed. Moreover, a lot of employers in cash-intensive businesses, such as delis, restaurants, laundromats or small construction firms, force employees to work off-the-books and accept cash as part of the employer’s scheme of hiding gross revenue from the IRS. Such employers often have every incentive to settle the case out of court before their tax evasion or tax fraud schemes become part of the court record.
A: Yes, you do. Both state and federal laws require employers to make and keep for up to six (6) years detailed records regarding employees’ pay, such as information about the rate of pay, the number of hours worked, as well as other miscellaneous payroll information. If the employer does not present such records in court, the solution is not to penalize the employee by denying him any recovery but to allow the employee to testify at trial based upon his or her general recollection as to the hours worked and the wages owed. Moreover, a lot of employers in cash-intensive businesses, such as delis, restaurants, laundromats or small construction firms, force employees to work off-the-books and accept cash as part of the employer’s scheme of hiding gross revenue from the IRS. Such employers often have every incentive to settle the case out of court before their tax evasion or tax fraud schemes become part of the court record.
Q: My employer forced me to pay kickbacks and/or to do other illegal stuff to keep my job. Can I still recover any money?
A: In almost all circumstances, you may. It is illegal for employers or for managerial or supervisory personnel of corporations to demand money or anything of value as bribes or kickbacks so that the employee can obtain a job or that he or she keep the job. Very often, employees may recover three times the amounts they had to pay as kickbacks or as bribes. If an employer or the employer’s manager pressures an employee to do anything illegal, it is necessary to refuse to engage in any illegal activity and to immediately contact the Human Resources department or, if there is no HR department, to consult with an attorney to protect one’s rights and to avoid any criminal responsibility. Real life examples of illegal acts to which employees were pressured to commit encountered by Robert Wisniewski P.C. are: when a supervisor pressures or intimidates a construction worker on a public works project to fill out and submit time sheets with incorrect hours of work; or when a nurse is asked to certify in patient records that she dispensed drugs or performed other prescribed activities with the patient when in fact she did not do so; or when a supervisor at a home attendant agency pressures a home attendant to accept payment for shifts she did not work, so that they can later split the payment for non-existent work.
A: In almost all circumstances, you may. It is illegal for employers or for managerial or supervisory personnel of corporations to demand money or anything of value as bribes or kickbacks so that the employee can obtain a job or that he or she keep the job. Very often, employees may recover three times the amounts they had to pay as kickbacks or as bribes. If an employer or the employer’s manager pressures an employee to do anything illegal, it is necessary to refuse to engage in any illegal activity and to immediately contact the Human Resources department or, if there is no HR department, to consult with an attorney to protect one’s rights and to avoid any criminal responsibility. Real life examples of illegal acts to which employees were pressured to commit encountered by Robert Wisniewski P.C. are: when a supervisor pressures or intimidates a construction worker on a public works project to fill out and submit time sheets with incorrect hours of work; or when a nurse is asked to certify in patient records that she dispensed drugs or performed other prescribed activities with the patient when in fact she did not do so; or when a supervisor at a home attendant agency pressures a home attendant to accept payment for shifts she did not work, so that they can later split the payment for non-existent work.
Q: I am aware that my employer defrauds the government or engages in tax fraud. What can I do?
A: If you have information that your employer or former employer submits false or fraudulent invoices or claims to any federal, state or city government and want to make things right and help the government, you may qualify as a whistleblower and stand to receive a reward – a portion (usually about 15-25 percent) of any damages recovered. Whistleblower lawsuits are brought under the False Claims Act or its state equivalent and seek to recover government funds wrongfully paid out to individuals, companies or agencies that submitted false claims or made false certifications in bills, contracts or other government documents. Such statutes allow people who are not affiliated with the government – primarily employees or former employees of the government contractors who possess insider knowledge of fraud – to file actions against such federal contractors claiming fraud against the government. Similarly, if you have information that your employer engages in tax fraud (such as: hiding revenue, paying numerous employees in cash, or taking kickbacks from employees), you may approach the Internal Revenue Service with specific information of tax improprieties and in certain circumstances receive a reward – a portion of the taxes, interest and penalties that the IRS recovers. It is advisable to file so-called “whistleblower” lawsuits as quickly as possible because only the first person to alert the government of fraud may receive the reward. Contact Robert Wisniewski P.C. at (212)267-2102 to evaluate your potential entitlement to a government award for uncovering fraud.
A: If you have information that your employer or former employer submits false or fraudulent invoices or claims to any federal, state or city government and want to make things right and help the government, you may qualify as a whistleblower and stand to receive a reward – a portion (usually about 15-25 percent) of any damages recovered. Whistleblower lawsuits are brought under the False Claims Act or its state equivalent and seek to recover government funds wrongfully paid out to individuals, companies or agencies that submitted false claims or made false certifications in bills, contracts or other government documents. Such statutes allow people who are not affiliated with the government – primarily employees or former employees of the government contractors who possess insider knowledge of fraud – to file actions against such federal contractors claiming fraud against the government. Similarly, if you have information that your employer engages in tax fraud (such as: hiding revenue, paying numerous employees in cash, or taking kickbacks from employees), you may approach the Internal Revenue Service with specific information of tax improprieties and in certain circumstances receive a reward – a portion of the taxes, interest and penalties that the IRS recovers. It is advisable to file so-called “whistleblower” lawsuits as quickly as possible because only the first person to alert the government of fraud may receive the reward. Contact Robert Wisniewski P.C. at (212)267-2102 to evaluate your potential entitlement to a government award for uncovering fraud.
Q: I work on a government-owned or financed project, but the employer is not paying me prevailing wages.
A: Both federal and state laws mandate that work on government owned or financed projects, such as construction or renovation of public schools, hospitals, subway stations, libraries, government buildings or housing projects (when subject to the Davis-Bacon Act), requires that all tradesmen, laborers and mechanics receive so-called prevailing wages established for the type of work they perform. Prevailing wages are the equivalent of union wages paid for the same trade in the locality and consist of a base rate and supplemental benefits. Unlike with the union wages, however, the employer can pay the supplemental benefits directly to the employee in cash. Various governmental agencies are charged with investigating and ensuring that employees of contractors and subcontractors receive prevailing wages but are limited by their jurisdiction, which is generally two to four years. However, an employee in New York who brings a lawsuit in state or federal court can sue for failure to pay prevailing wages going back six (6) years. Contact Robert Wisniewski P.C. at (212) 267-2102 to discuss your entitlement to prevailing wages.
A: Both federal and state laws mandate that work on government owned or financed projects, such as construction or renovation of public schools, hospitals, subway stations, libraries, government buildings or housing projects (when subject to the Davis-Bacon Act), requires that all tradesmen, laborers and mechanics receive so-called prevailing wages established for the type of work they perform. Prevailing wages are the equivalent of union wages paid for the same trade in the locality and consist of a base rate and supplemental benefits. Unlike with the union wages, however, the employer can pay the supplemental benefits directly to the employee in cash. Various governmental agencies are charged with investigating and ensuring that employees of contractors and subcontractors receive prevailing wages but are limited by their jurisdiction, which is generally two to four years. However, an employee in New York who brings a lawsuit in state or federal court can sue for failure to pay prevailing wages going back six (6) years. Contact Robert Wisniewski P.C. at (212) 267-2102 to discuss your entitlement to prevailing wages.
Q: My employer has two companies, one is unionized, the other is not, and I am working for the non-union company; or I am working on a job site where all employees are unionized but I am not receiving union wages. Can I bring a lawsuit for union wages?
A: In most circumstances, you may. Whenever an employer engages in so-called double-breasting, that is fulfilling contracts entered into by an unionized company with cheaper, non-unionized labor, employees of the non-unionized company are entitled to union wages for the type of work they performed. Often, employers claim that for whatever reasons, employees of the non-unionized company are not entitled to union wages, or dissuade such employees from contacting the union. If you believe that you should be paid union wages, and know the union under whose jurisdiction the job is performed, you may contact the union to investigate the matter. You may also bring a lawsuit against the employer for failure to pay union wages, especially if you believe, or were told, that union officials are unwilling to help. However, you must act very quickly, as lawsuits against the employer for failure to pay union wages must be brought within six (6) months of the time when you realized that you were entitled to union wages. Contact Robert Wisniewski P.C. at (212) 267-2102 to evaluate your entitlement to union wages.
A: In most circumstances, you may. Whenever an employer engages in so-called double-breasting, that is fulfilling contracts entered into by an unionized company with cheaper, non-unionized labor, employees of the non-unionized company are entitled to union wages for the type of work they performed. Often, employers claim that for whatever reasons, employees of the non-unionized company are not entitled to union wages, or dissuade such employees from contacting the union. If you believe that you should be paid union wages, and know the union under whose jurisdiction the job is performed, you may contact the union to investigate the matter. You may also bring a lawsuit against the employer for failure to pay union wages, especially if you believe, or were told, that union officials are unwilling to help. However, you must act very quickly, as lawsuits against the employer for failure to pay union wages must be brought within six (6) months of the time when you realized that you were entitled to union wages. Contact Robert Wisniewski P.C. at (212) 267-2102 to evaluate your entitlement to union wages.
Q: I filed a grievance with my union, but the union is not doing anything for me. What can I do?
A: It is a duty of a trade union or of a public employees’ union to represent its members against their employers. If you feel that your union is not representing you appropriately against your employer, or that it has refused to do so, you may contact the National Labor Relations Board (NLRB) or the Public Employment Relations Board (PERB) and lodge a complaint against your union. If you suspect that union officials are in cahoots with the employer, you may also bring a lawsuit against your union and the employer in court. It is imperative that you act quickly, as the law provides only four (4) or six (6) months in which an employee can seek redress against his or her union and the employer for violations of collective bargaining agreement. Contact Robert Wisniewski P.C. at (212) 267-2102 to evaluate your rights against your union and the employer.
A: It is a duty of a trade union or of a public employees’ union to represent its members against their employers. If you feel that your union is not representing you appropriately against your employer, or that it has refused to do so, you may contact the National Labor Relations Board (NLRB) or the Public Employment Relations Board (PERB) and lodge a complaint against your union. If you suspect that union officials are in cahoots with the employer, you may also bring a lawsuit against your union and the employer in court. It is imperative that you act quickly, as the law provides only four (4) or six (6) months in which an employee can seek redress against his or her union and the employer for violations of collective bargaining agreement. Contact Robert Wisniewski P.C. at (212) 267-2102 to evaluate your rights against your union and the employer.
Q: What can be qualified as sexual harassment? How do I know that I am being sexually harassed?
A: The fact that you are looking for answers to this question indicates that you may be a victim of sexual harassment. Federal, state and New York City law protects employees from being harassed because of that person’s sex. Sexual harassment can take on many forms and depends on the context: it may be a demand for a sexual favor by your supervisor, or it may be an atmosphere or an environment, created by your coworkers, in which you feel very uncomfortable because of your sex. It may be just one isolated but extreme incident (such as groping your genital areas at an office party), or it may be a series of incidents, acts or comments of a sexual nature or comments about the opposite sex. Men as well as women may be victims of sexual harassment, and the victim and the harasser may be of the same sex.
A: The fact that you are looking for answers to this question indicates that you may be a victim of sexual harassment. Federal, state and New York City law protects employees from being harassed because of that person’s sex. Sexual harassment can take on many forms and depends on the context: it may be a demand for a sexual favor by your supervisor, or it may be an atmosphere or an environment, created by your coworkers, in which you feel very uncomfortable because of your sex. It may be just one isolated but extreme incident (such as groping your genital areas at an office party), or it may be a series of incidents, acts or comments of a sexual nature or comments about the opposite sex. Men as well as women may be victims of sexual harassment, and the victim and the harasser may be of the same sex.
Q: I feel that I am being harassed or discriminated against but I am not sure whether I can sue my employer?
A: Discrimination may take many forms and the law protects employees from certain specified forms of such conduct. A determination whether discrimination occurred is fact specific and depends on the context. Discrimination may take many forms from seemingly benign to outrageous acts: when the employer allows for an environment in which ethnic jokes are made or employees make disparaging comments about a particular race, ethnic group or religion, this may create a hostile work environment; when the employer or a manager metes out discipline in such a way that it affects different ethnic, race or gender groups differently, such as punishing Latino workers but not white employees for the same infraction; when the employer does not make an accommodation to an employee for her religious needs; or when the employer does not hire someone based on that person’s race, sex, religion, ethnicity or other characteristic protected by law.
A: Discrimination may take many forms and the law protects employees from certain specified forms of such conduct. A determination whether discrimination occurred is fact specific and depends on the context. Discrimination may take many forms from seemingly benign to outrageous acts: when the employer allows for an environment in which ethnic jokes are made or employees make disparaging comments about a particular race, ethnic group or religion, this may create a hostile work environment; when the employer or a manager metes out discipline in such a way that it affects different ethnic, race or gender groups differently, such as punishing Latino workers but not white employees for the same infraction; when the employer does not make an accommodation to an employee for her religious needs; or when the employer does not hire someone based on that person’s race, sex, religion, ethnicity or other characteristic protected by law.
Q: I work for a restaurant as a server/busser and the restaurant owner forces us to share tips with managers or non-servers; or to participate in a mandatory tip pool; or includes managers or other non-service personnel in the tip-pool.
A: First and foremost, any amount that the restaurant patron intends should go to the personnel which provided personal service (whether it is a “tip” or a “service charge”) is considered a “gratuity” and must be conveyed by the restaurant to such personnel. Restaurants often permit service personnel to share tips and maintain what are referred to as tip-pools. One must distinguish tip-sharing from tip-pooling. Generally, a server in a restaurant where there is no tip-pooling may decide to share his or her tips with a busser or other personnel involved in the service of restaurant patrons. But this arrangement must be purely voluntary and a server must not be forced by the restaurant to share his or her tips with anybody. Federal law and New York State Law permit restaurants to establish a mandatory tip-pool for all those who provide or assist in the provision of personal service to their patrons, including servers, bussers, bartenders, hostesses, head-waiters or captains. However, five conditions must be met for a mandatory tip pool to be valid: (1) all those involved in the provision of service to patrons must receive at least the so-called tip-credit minimum wage; (2) tips received from the pool when added to the tip credit wage received by an employee for that week must amount to or exceed the regular minimum wage for every hour the employee worked in a week; (3) the division of tips among the pool participants must be reasonable and customary in the restaurant industry; (4) managers or assistant managers who do not routinely provide or assist in the provision of personal service to patrons must not participate in the tip pool; and (5) the restaurant must maintain and provide for every tip-pool participant’s review documents showing the amount of tips collected and how the tips are divided. There are various ways in which restaurant owners attempt to cheat restaurant workers. Restaurants often make patrons believe that their mandatory “service fee” is intended for their servers but then withhold such service fees from the service personnel. This often happens during so-called ‘banquets” or closed events. Sometimes, tip pools are set up with unreasonable criteria, such as when a hostess or a busboy receives as much in tips as the server. Such a division of tips is unreasonable and not an industry standard, as servers and head waiters generally receive the most in tips. Or when a shift manager is given a bogus title of a “head waiter” or a “captain” and included in a tip pool. The most outrageous examples of tip-pool violations encountered by Robert Wisniewski include: a high traffic suburban diner in which substantial cash tips left by patrons (which would entitle servers and bussers to several hundred Dollars per week) were put in a padlocked tip box and only the manager counted the money in secret, while the diner always distributed a very small fraction of those cash tips to the service personnel and did not maintain any records of the tips collected; several top flight restaurants that included its shift managers who performed absolutely no service for its patrons in the tip-pool by claiming that they were “captains” and “head-waiters”; a Manhattan theater district restaurant that paid its servers and bussers a so-called shift pay of $20 for each shift, which amounted to less than $1 per hour for the hours they worked.
A: First and foremost, any amount that the restaurant patron intends should go to the personnel which provided personal service (whether it is a “tip” or a “service charge”) is considered a “gratuity” and must be conveyed by the restaurant to such personnel. Restaurants often permit service personnel to share tips and maintain what are referred to as tip-pools. One must distinguish tip-sharing from tip-pooling. Generally, a server in a restaurant where there is no tip-pooling may decide to share his or her tips with a busser or other personnel involved in the service of restaurant patrons. But this arrangement must be purely voluntary and a server must not be forced by the restaurant to share his or her tips with anybody. Federal law and New York State Law permit restaurants to establish a mandatory tip-pool for all those who provide or assist in the provision of personal service to their patrons, including servers, bussers, bartenders, hostesses, head-waiters or captains. However, five conditions must be met for a mandatory tip pool to be valid: (1) all those involved in the provision of service to patrons must receive at least the so-called tip-credit minimum wage; (2) tips received from the pool when added to the tip credit wage received by an employee for that week must amount to or exceed the regular minimum wage for every hour the employee worked in a week; (3) the division of tips among the pool participants must be reasonable and customary in the restaurant industry; (4) managers or assistant managers who do not routinely provide or assist in the provision of personal service to patrons must not participate in the tip pool; and (5) the restaurant must maintain and provide for every tip-pool participant’s review documents showing the amount of tips collected and how the tips are divided. There are various ways in which restaurant owners attempt to cheat restaurant workers. Restaurants often make patrons believe that their mandatory “service fee” is intended for their servers but then withhold such service fees from the service personnel. This often happens during so-called ‘banquets” or closed events. Sometimes, tip pools are set up with unreasonable criteria, such as when a hostess or a busboy receives as much in tips as the server. Such a division of tips is unreasonable and not an industry standard, as servers and head waiters generally receive the most in tips. Or when a shift manager is given a bogus title of a “head waiter” or a “captain” and included in a tip pool. The most outrageous examples of tip-pool violations encountered by Robert Wisniewski include: a high traffic suburban diner in which substantial cash tips left by patrons (which would entitle servers and bussers to several hundred Dollars per week) were put in a padlocked tip box and only the manager counted the money in secret, while the diner always distributed a very small fraction of those cash tips to the service personnel and did not maintain any records of the tips collected; several top flight restaurants that included its shift managers who performed absolutely no service for its patrons in the tip-pool by claiming that they were “captains” and “head-waiters”; a Manhattan theater district restaurant that paid its servers and bussers a so-called shift pay of $20 for each shift, which amounted to less than $1 per hour for the hours they worked.
Q: My former employer is currently out of business and/or filed for bankruptcy. Can I still recover any money for my past employment?
A: Yes, you can. Both federal, state and local law provides that one or more persons or entities may be responsible for your wages. So, even if the company you worked for stopped doing business or even filed for bankruptcy, you may still bring a lawsuit against the company’s owners or managers based on various theories: (1) that they are responsible for employees’ wages as ten largest shareholders of the company; (2) that they were your joint employers along with the company because of the level of operational control they exercised over the company and the employees; (3) that the corporation was in fact their alter ego. Very often, another corporation for which your former employer performed services may be brought to account for your unpaid wages based on the relationship between that corporation and your former employer.
A: Yes, you can. Both federal, state and local law provides that one or more persons or entities may be responsible for your wages. So, even if the company you worked for stopped doing business or even filed for bankruptcy, you may still bring a lawsuit against the company’s owners or managers based on various theories: (1) that they are responsible for employees’ wages as ten largest shareholders of the company; (2) that they were your joint employers along with the company because of the level of operational control they exercised over the company and the employees; (3) that the corporation was in fact their alter ego. Very often, another corporation for which your former employer performed services may be brought to account for your unpaid wages based on the relationship between that corporation and your former employer.
Q: I would like to sue my employer but I do not work for this company anymore. How much time after I quit my job (or got fired) can I go back to recover my wages or sue for discrimination?
A: It is best to immediately contact an attorney to determine how much time there is to sue an employer, as different claims can be brought within different time frames. In general, under the federal law and the New Jersey law, an employee may sue for unpaid or underpaid wages and overtime for up to three (3) years from the date of each unpaid (or underpaid check). Under New York, however, an employee may sue the employer for unpaid or underpaid wages and overtime, including union wages and prevailing wages, for up to six (6) years. Claims for discrimination under the federal law may be brought within one hundred eighty (180) days of the discriminatory act (in New York State within 300 days). Under New York State Human Rights Law and New York City Human Rights Law, however, such claims may be brought within three (3) years of the discriminatory act. Claims against trade unions or public employees’ unions must be brought within six (6) and (4) months from the time the union member should have known that the union is not representing him properly. Employees may also bring other claims, such as tort claims: battery, emotional distress or negligence against their employers or managers. Each situation is different and requires an appropriate analysis by an attorney. Contact Robert Wisniewski P.C. at (212) 267-2102 to evaluate your rights against your union and the employer.
A: It is best to immediately contact an attorney to determine how much time there is to sue an employer, as different claims can be brought within different time frames. In general, under the federal law and the New Jersey law, an employee may sue for unpaid or underpaid wages and overtime for up to three (3) years from the date of each unpaid (or underpaid check). Under New York, however, an employee may sue the employer for unpaid or underpaid wages and overtime, including union wages and prevailing wages, for up to six (6) years. Claims for discrimination under the federal law may be brought within one hundred eighty (180) days of the discriminatory act (in New York State within 300 days). Under New York State Human Rights Law and New York City Human Rights Law, however, such claims may be brought within three (3) years of the discriminatory act. Claims against trade unions or public employees’ unions must be brought within six (6) and (4) months from the time the union member should have known that the union is not representing him properly. Employees may also bring other claims, such as tort claims: battery, emotional distress or negligence against their employers or managers. Each situation is different and requires an appropriate analysis by an attorney. Contact Robert Wisniewski P.C. at (212) 267-2102 to evaluate your rights against your union and the employer.
Q: I still work for my company and do not want to change my job anytime soon. Can I still sue my employer?
A: Both federal and state laws prohibit employers and all of their employees, including managerial and administrative staff, from discharging you or in any other manner taking adverse action or discriminating against you (including not giving you new work assignments on the basis that there is no work available, when in fact there is work available), because you, while still employed by the employer, brought a lawsuit in court or filed a complaint with a governmental agency, or provided testimony that was adverse to the interests of the employer in somebody else’s lawsuit for unpaid wages or discrimination.
A: Both federal and state laws prohibit employers and all of their employees, including managerial and administrative staff, from discharging you or in any other manner taking adverse action or discriminating against you (including not giving you new work assignments on the basis that there is no work available, when in fact there is work available), because you, while still employed by the employer, brought a lawsuit in court or filed a complaint with a governmental agency, or provided testimony that was adverse to the interests of the employer in somebody else’s lawsuit for unpaid wages or discrimination.
A: A case may last only several months or it may last several years. It depends on numerous factors, some of which are: the nature of the case (individual or class action), the court in which the case is filed, the judge assigned to the case, the amount and type of evidence that needs to be gathered, the number of witnesses who need to be located and examined before trial. It also depends on the employer – or more precisely – on the decision-makers at the employer. Generally, small businesses have less resources to fight a case and may have reasons to quickly settle the case (as, for example, they do not want their finances to be examined in court). Large corporations, especially publically held corporations, have practically infinite resources to fight and often drag out the litigation or make it unnecessarily contentious in the hope that the plaintiff loses a desire to fight and takes a bad settlement, or that the plaintiff’s attorney interested in getting a quick contingency fee, will push his or her client to settle for much less than the plaintiff would get by trying the case. Another important factor is the quality of plaintiff’s representation. While no attorney can ethically guarantee the outcome of the case, there is no secret that good attorneys obtain good results for their clients.
