Gibbons Law Alert

Gibbons Law Alert

Tagged: Compensation

Wage and Hour Guidance: IRS and Department of Labor Focus on Worker Misclassification

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Posted in Wage and Hour

On September 27, 2011

Employers should be aware of two recent announcements from the U.S. Department of Labor (“DOL”) and the Internal Revenue Service (“IRS”) regarding the misclassification of workers as independent contractors or non-employees. First, the DOL on September 19, 2011 signed a memorandum of understanding with the IRS that is designed to improve the DOL’s efforts to curtail employee misclassification by employers by sharing information with both the IRS and participating states. Second, the IRS announced on September 21, 2011 the launch of a new program, the Voluntary Classification Settlement Program (“VCSP”), that will enable employers to resolve prior misclassification of employees as independent contractors. The VCSP significantly limits past taxes for misclassified workers if an employer comes forward voluntarily in an attempt to comply with the tax laws.

Wage and Hour Guidance: Individual Liability for Officers and Directors Under the FLSA

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Posted in Wage and Hour

On August 25, 2011

Corporate directors, officers, and agents need to be aware of the potential personal risks associated with the non-payment of wages to their company’s employees. Although the existence of a corporate or other business-entity form generally provides protection from individual liability for corporate actors, one significant exception is for claims brought pursuant to the Fair Labor Standards Act (“FLSA”). A corporate director, officer or agent’s own individual assets may be used to satisfy any judgment for unpaid wages in favor of the company’s employees. As employers continue to deal with the economic downturn, and more companies are finding themselves struggling to meet payroll, corporate officers, directors, or agents may more frequently find themselves the individually-named targets of an FLSA lawsuit.

New York Wage Theft Prevention Act Effective April 9, 2011

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Posted in Wage and Hour

On May 4, 2011

We previously reported on a series of changes to New York Labor Law contained within the Wage Theft Prevention Act (“WTPA”) that are now applicable to all New York private-sector employers (including charter schools, private schools, and not-for-profit corporations). As discussed in our previous post, the WTPA requires New York employers to provide all employees with written pay notices at the time of hire and on or before February 1 of each year that include: the employee’s rate or rates of pay; the overtime rate of pay, if the employee is nonexempt; the basis of wage payment (e.g., per hour, per shift, per week, piece rate, commission, etc.); the allowances to be claimed against the minimum wage (e.g., tip, meal, and lodging allowances); the regular pay day; the employer’s name and any name under which the employer conducts business; the physical address of the employer’s main office or principal place of business (if different from the mailing address); and the employer’s telephone number.

New York Employers Must Comply with Wage Theft Prevention Act Effective April 12, 2011

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Posted in Wage and Hour

On January 4, 2011

On December 14, 2010, New York Governor David Patterson signed the Wage Theft Prevention Act (“WTPA”), a new law that significantly changes the wage and hour landscape for all New York employers. This amendment to the New York Labor Law targets those employers who engage in “wage theft” by underpaying employees. In application, however, the WTPA will affect all New York employers by imposing burdensome notification and recordkeeping requirements, expanding the scope of penalties for violations, and increasing opportunities for employment litigation through strengthened anti-retaliation provisions. In compliance with these new amendments, New York employers will need to amend their payroll practices on or before April 12, 2011.

Individual Paychecks Re-start the Statute of Limitations in Discriminatory Compensation Claims Under the NJLAD

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Posted in Discrimination

On November 29, 2010

Peace of mind. That is what the two-year statute of limitations period applicable to claims filed under the New Jersey Law Against Discrimination (“LAD”) afforded employers. With respect to discriminatory compensation claims, however, the New Jersey Supreme Court’s decision in Alexander v. Seton Hall University has destroyed that peace of mind, holding that each individual paycheck effecting a discriminatory compensation decision constitutes an actionable unlawful employment practice. No longer is the two-year statute of limitations measured from the date of the compensation decision.

Third Circuit Refused to Apply Ledbetter to Promotion Claims

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Posted in Discrimination

On November 10, 2010

On an issue of first impression in the Third Circuit whether “a failure-to-promote claim” constitutes “discrimination in compensation” as prohibited by the Lilly Ledbetter Fair Pay Act of 2009 (“FPA”) the Court of Appeals recently held that a failure to promote claim is not the same as a discrimination in compensation claim. Consequently, the Plaintiff in Noel v. The Boeing Company could not avail himself of the FPA’s more flexible statute of limitations period.

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