Day care center’s policy cannot supersede overtime laws

The Firm was quoted in Newsday today in a column by Carrie Mason-Draffen. Check out the article below.

DEAR CARRIE: I work at a day care center. We are paid for our 30-minute lunch break and are not allowed to leave the premises during that time. I understand the reasoning for the policy. It ensures that we are on site to help in case of an evacuation. But the director says the 30 minutes cannot be applied to our total work hours, even though we sometimes work through the break because of parent calls. In fact, our handbook states that the director can decide whether or not we should be paid for overtime. Is it legal to exclude working lunch time from our total hours worked for the week?

— Indigestion

DEAR INDIGESTION: Though you have just one question, it encompasses various aspects of labor law. I’ll start with the most straightforward. When you work, that time should be accounted for in the day care’s payroll records.

“On the days that you work during your lunch, these hours should be counted toward the number of hours worked per week,” said employment attorney Sheree Donath of Donath Law in Uniondale.

Next is the issue of whether you should be paid overtime if working through lunch takes you over 40 hours a week.

If you are a teacher at a facility that meets the definition of an educational establishment, you may be exempt from overtime, Donath said. Teachers at day care centers are exempt from overtime and minimum wage if they, like teachers at elementary or secondary schools, fall into the professional-exemption category.

“If you meet this definition and your school is considered an educational establishment, then you may not be entitled to overtime,” Donath said. On the other hand, “if you are not a teacher or do not meet the requirements of the professional teacher exemption, then you may be entitled to overtime pay if you exceed 40 hours of work each workweek.”

It’s worth mentioning that an overtime rate doesn’t have to kick in simply because you surpass your customary work schedule, Donath said.

So if you are scheduled to work just 30 hours a week, and you work through your 30- minute lunch break every day, you would have worked only 32 1⁄2 hours that week and would not be entitled to overtime. If you are an hourly employee, you would have to be paid for those extra 2 1⁄2 hours but not at an overtime rate, which is 1 1⁄2 times your regular hourly rate for every hour over 40 in a workweek.

If you are an hourly employee, the company, by offering you a paid lunch hour, at least covers the time you have to talk to parents.

“Generally an employee does not need to be paid for the 30- minute lunch break you are receiving, provided that you do not perform any work during this entire period,” Donath said. “If you do perform any duties, then you are not considered relieved from duty and would have to be paid for this time.”

Lastly, if you are an hourly worker, any day care policy meant to prevent you from being paid overtime may be illegal, Donath said.

“An employer cannot just say you are not entitled to overtime if the facts of your circumstances are otherwise,” Donath said. “A handbook provision stating you are not entitled to overtime may not be valid as it may be an illegal attempt to circumvent the overtime laws.”

She recommended that you, with a copy of the company handbook in hand, consult a lawyer who could advise you based on the particulars of your situation.

“Once the facts of your situation are reviewed, you can determine the next best course of action,” she said.

Donath said you could also contact the U.S. Labor Department at 516-338-1890 or 212-264- 8185. Or try the state Labor Department at 516-794-8195 or 212- 775-3880.

If you have not been properly paid, you may be entitled to back wages and damages, she said.

Is Your New Year’s Resolution to Resign from Your Job? Before You Do, Consider these Factors

Letter of resignation and a red pencil

Is your New Year’s Resolution to make changes in your career? Are you considering resigning from your job? Do you feel that you have no alternative but to resign?

When resigning from your job, it may be in your (and your family’s) best interest to speak with an attorney. Careful consideration is put into resigning from your job. The same careful consideration should be put into how you resign. Donath Law, LLC, can guide you through the resignation process and review pertinent documents prior to your resigning to help you avoid issues in your future.If you are considering resigning from your job there are several factors to be considered. Some of these include:

(a) What is the best time to resign for you and your family?

(b) Do you know how much notice you must provide to your employer?

(d) Is your family’s health insurance through your employer? If so, do you know your rights to COBRA or do you intend to obtain health insurance from a new employer?

(e) Have you signed anything that will restrict your future employment like a non-compete agreement, confidentiality agreement or inventions agreement?

(f) Do you have any issues to resolve with your employer prior to your departing?

(g) Have you already obtained alternate employment?

(h) Are you resigning for new employment, to make a lifestyle change or because your employer is pressuring you to leave?

Resigning from your job may preclude you from obtaining unemployment benefits. This, however, is not the case in all situations. The reasons for your resignation will help determine whether you are entitled to these benefits. For example, if your employer has made your employment so intolerable that you are getting physically sick, you may have no alternative but to leave your employment and thus, may be entitled to unemployment benefits despite the fact that you “resigned”.

Prior to resigning from your employment it is important that you understand your legal rights and to determine if you may be able to obtain a severance package on your way out. Has your employer mistreated you? Has your employer promised you items that you have not received? Are you currently involved in any ongoing projects that your employer still needs you to assist on? Are you an important witness in a case your employer is presently involved in?

It is also essential to determine and understand any obligations that you may have agreed to during your employment relation. Prior to resigning you should obtain and review any documents that you signed so that you are clear as to whether there are any restrictions on your future – are you precluded from working for a competitor? Do you have a garden leave provision? Did you agree to continued confidentiality, non-disparagement and/or cooperation with your soon to be former employer?

Put Your Child First this Holiday – Create a Proper Parenting Plan that Takes Into Account Your Child’s Best Interests

Keep Holiday Drama to a Minimum This Year

Child-like illustration of two parents tugging a child who is crying into a large pool of tears

For most people, the holidays are a time of happiness and family. But for those who are divorced or separated or contemplating a divorce, the holiday season may present many challenges. It is important to keep the holiday drama to a minimum and put the child’s best interests first this holiday season.For many children of split homes, the holidays may mean (a) splitting their time between their parents; (b) being in the midst of their parent’s arguments regarding scheduling of time with the child; (c) stressing about the interaction between the parents as they meet to drop off/pick up the child; (d) missing time with other family members because it is time to go with the other parent; (e) leaving the fun at one house and possibly missing the fun at the other house; (f) not being involved in traditions; and (g) simply being sad that the child cannot spend the holidays with both parents simultaneously.

Despite the relationship between you and your spouse/former spouse, once you have children, their interests are to come first. The child should not feel anxiety or stress because a holiday is approaching and they should not be aware of the parents anxiety or stress. Parents should consider what would make the child happy, not what will anger the other parent most. Remember, that these are lifelong memories that are being built and your child may not remember all of the details of the holidays, but will remember how he/she felt and whether his/her parent made them feel that way.

While your relationship and divorce may be contentious, try to set that aside and focus on your child. Is it best for the child to alternate years with each parent, spending the time between Christmas and New Year’s with one parent one year and the other parent the following year? Or is it better to split the holidays so that the child spends half the holiday week with one parent and half with the other? Or would it be better for each parent to take certain holidays to share with the child rather than shuffling the child mid-day? Would your child be happier to share the day of the holiday, with one parent having the child in the morning and the other having the child in the evening? Are you able to both be in the same place at the same time with the child on the holiday?

There are many factors to consider in creating a parenting plan. The primary factor being what is best for the child. Schedules must be coordinated and worked out, but creating experiences with the child that the child will remember and look back on happily, is the ultimate goal.

So as the holidays approach, do not let your feelings for your former spouse cloud your judgment. Think of what will make your child(ren) happiest.

Donath Law, LLC can assist you in preparing and modifying your parenting plan to put your child’s interests first. and allow you to be the parent you want to be this holiday and for all future holidays.

Mediation – A Helpful Tool in Resolving Divorces and Workplace Disputes

Mediation is a non-binding, voluntary process where both parties must be interested in achieving resolution. It can be a helpful tool in conflict resolution, both in the workplace and for spouses looking to divorce or separate. However, mediation is not the proper forum for everyone.

Mediation is successful if the parties want to be a part of the process and are serious about resolving their differences. In mediation, the parties meet with a mediator. The mediator is there to facilitate resolution. The mediator cannot force resolution, but will help the parties come up with alternatives and options with a goal of reaching agreement.

Divorce mediation is the preferred choice for couples facing separation and/or divorce because it is a more amicable, faster and cheaper process than litigation. It offers couples more control over the process and the decision-making, allowing for more flexibility and cooperation in determining, among others: Equitable Distribution of Assets and Property, Custody, Child Support, and Maintenance. Divorce mediation allows couples to structure their divorce differently than if they went to court. The parties are made aware of the guidelines for child support and spousal maintenance, but have the option to opt out of these guidelines and decide together the amount of these payments. The parties can work together to determine a parenting plan and custody arrangements that best suits their child(ren) and their life. Aside from the flexibility in structuring the divorce and distribution of assets and liabilities, the cost of divorce is a fraction of the cost as compared to a contested litigation.

Mediation can also be a helpful tool in workplace disputes. Prior to commencing litigation, the parties should consider mediation, as it is generally faster and the parties, as stated above, have more control over the process. Some employers have policies requiring mediation prior to litigation or arbitration. A good mediator, is aware of the law and attempts to settle the underlying issues that have arisen. The parties will make the mediator aware of the circumstances, the efforts, if any, that have been made to resolve the situation and the proposed resolution. The mediator will work to try and facilitate resolution and at the same time provide his/her insight into the strengths and weaknesses of the claims.

Mediation is generally not successful if the parties are not both on board. If the parties are not truly interested in resolving the situation, the mediation will most likely fail. If mediation is being used as a tool to humiliate, intimidate or deplete a parties’ assets, the mediation should not move forward or should be halted quickly. In situations where there are orders of protection or claims of domestic violence, mediation is not the proper forum for divorce. Parties should not move forward with mediation if one party is overbearing or controlling.

In all situations, should resolution be reached the agreed upon terms should be subscribed to writing and provided to the parties for both to have reviewed by an attorney and signed. A copy of the agreement should be kept by both parties so that they are both aware of their obligations.

In a truly success mediation, the parties are slightly unhappy but happy that the matter has been resolved. Why? Because mediation is a compromise by the parties. One party agrees to give in to one item in order to obtain another, or one party paid more money than they wanted to the other party but the other party is disappointed because he/she wanted more than what was to be received. Overall, the parties are satisfied with the outcome because the issues have been addressed and settled. Both parties have had the opportunity to speak, be heard, and stand up for what he/she believes and wants.

Legal Separation v. Divorce: Find Out the Difference

Are you unhappy in your marriage? Is marriage not what you expected or is it no longer working for you and your spouse? Don’t worry, you have options. It is difficult to make the decision to end a marriage and it is a decision that should not be taken lightly. It is for this reason, among others, that before taking that drastic step, many couples decide to first experience life apart through a legal separation.

Legal separation provides couples an opportunity to live apart from each other and at the same time sets out the rights and responsibilities for each spouse. This includes, items such as child custody, child support, spousal support/maintenance and property division. A legal separation is a legally binding document that a married couple enters into to decide the terms of their separation without ending their marriage. Once entered into, the couple is still legally married but is also considered separate in the eyes of the law.

A legal separation can be accomplished through a written agreement by the parties or by going to court and requesting a judgment of separation.

The main difference between legal separation and divorce is that a legal separation does not actually dissolve the marriage and the parties are still considered legally married and therefore cannot get remarried.

Legal separation offers advantages to the couple. Specifically:

(1) It allows the couple to see how their current problems and relationship is affected by living apart so that they can determine if they want to reconcile or they want to officially end their marriage and file for divorce. If they choose to reconcile, there is no need to remarry.

(2) It is generally a more amicable process and may have less of a tumultuous effect on the couple’s child(ren).

(3) A legal separation can be highly advantageous in protecting both spouses’ entitlement to benefits. Since the couple is still married, the couple maintains their married status and benefits like health plan coverage that would likely terminate upon divorce generally will continue. Spouses who are married for at least ten years are generally eligible for certain Social Security Benefits and for benefits under the Uniformed Services Former Spouse Protection Act. There may also be tax benefits.

(4) Some couples choose legal separation as an alternative to divorce for religious and/or moral reasons.

(5) While divorce can be an amicable process, a majority of divorce proceedings are long, drawn out, expensive litigations. Divorce battles, more often than legal separation cases, can be hostile. This can rack up large attorneys’ fees and court costs.

(6) Obtaining a legal separation generally does not disrupt life and work the way a divorce battle can. Both spouses can continue to function normally in their daily lives without the stress, emotional turmoil and time requirements that can come with drawn-out divorce cases.

(7) Another benefit is that once a legal separation is complete, the legal work involved in coming to an agreement can be used during the divorce process, since the rights and responsibilities of the parties during the separation can be converted into post-divorce obligations.

While legal separation offers many advantages, divorce may be the only option for some couples. Ultimately the decision of legal separation versus divorce comes down to the circumstances involved in the marriage. A legal separation will still keep the couple married, and if a spouse wants to marry someone else they have to file for divorce.

School music judge wonders if ‘contractor’ label is right

I was quoted in today’s Newsday article by Carrie Mason-Draffen. See the article below:

DEAR CARRIE: I am a member of the New York State School Music Association, or NYSSMA, which is an organization dedicated to advancing music education in school systems across the state. Every spring, NYSSMA sponsors evaluation festivals during which students perform and then receive ratings and written comments about their musical proficiency. I am one of the many judges for the various festivals. NYSSMA conducts the judges’ training, formulates the scheduling, determines how the performances are scored, and sets the hourly pay rate. Yet it reminds us at the beginning of every season that we are independent contractors. How can this be? — Sour Note

DEAR SOUR: Based on the information you provided, it’s possible you are being misclassified as an independent contractor, said employment lawyer Sheree Donath of Donath Law in Uniondale.

A lot is at stake in classifying workers. Employees, unlike independent contractors, may qualify for their employers’ health benefits, paid time off and pension contributions, as well as state unemployment benefits should they lose their jobs, Donath said. For employers, hiring independent contractors means they forgo all those expenses and more.

“Many organizations like to hire workers as independent contractors rather than employees to avoid making payment of benefits and taxes,” she said. “For this reason, many workers are misclassified as independent contractors.”

Employers can’t just declare someone an independent contractor. By law, many criteria must be met. And at least three government agencies have guidelines for determining an employee’s status, and they all look at the issue of control.

The New York State Department of Labor looks at whether the employer controls such things as: the work to be performed, the rate of pay and the hours of work. The department also looks at who supervises the independent contractor and whether the company requires the contractor’s exclusive service.

True independent contractors control their working environment, Donath said. And they are free to work for several businesses. They can accept or reject certain projects and may have their own business.

The U.S. Department of Labor uses determining factors that include: whether the work is an integral part of the employer’s business; whether the employer controls the work; whether the independent contractors’ managerial skills affect their bottom line; whether the work performed requires special skill and initiative, and whether the relationship between the worker and the employer is indefinite.

The IRS guidelines look at the relationship of the employer and independent contractor to determine such things as behavioral and financial controls and the nature of the relationship.

With the behavioral factor, Donath said, the key question is: Does the company control or have the right to control what the worker does and how that person does his or her job? For the financial element the agency looks at whether the business aspects of the independent contractor’s job are controlled by the employer, she said. These include things like how worker is paid, whether expenses are reimbursed and who provides the tools and supplies. Lastly, the federal agency looks at broader aspects of the relationship such as whether a contract is involved and whether employee-type benefits are offered.

So you need to answer some key questions about your work arrangement to determine your true status, Donath said. For example, are you required to work at every festival or can you choose which festivals to judge? Are the supplies provided for you or do you provide your own? Do you receive any benefits from NYSSMA? Can you decide what training to attend? And are you able to promote your own business while judging at the festival?

“I suggest that you consult with an experienced attorney to determine if you are being classified improperly and to find out your rights and options,” she said.