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Equal Pay/Compensation Discrimination


Equal Pay/Compensation Discrimination in the Workplace

While employment discrimination claims are by far the largest sector of employment discrimination, there has been a growing trend in jurisprudence to bring wage and hour claims against employers who refuse to properly pay their hard-working employees. In 2011, more than 7,000 collective actions have been filed in federal courts.

These claims are often brought as collective actions under the Fair Labor Standards Act of 1938 (“FLSA”). The FLSA is the premier legislation protecting employees rights, including establishing a minimum wage, overtime, pay, recordkeeping, and child labor laws affecting full-time and part-time employees in both the public and the private sector. The FLSA is enforced by the Wage and Hour Division (“WHD”) of the U.S. Department of Labor (“DOL”).
If you are an employee and need representation in an employment law issue, contact us for a free review with an employment law attorney today.

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What is the General effect of the fair labor standards act of 1938 (FLSA)?

Unfortunately, employers intentionally exploit workers who do not fully understand their employment rights. Some of the many ways in which wage and hour violations occur include:

  • Misclassifying employees as exempt;
  • Misclassifying employees as independent contractors;
  • Falsifying time cards;
  • Denying overtime pay;
  • Failing to pay minimum wage to tipped workers;
  • Allowing managers to skim off tipper workers’ pools;
  • Pressuring employees to work off the clock; and
  • Not paying time-and-a-half for hours worked over 40 in a work week.

Along with full-time and part-time employees, the law also provides some protections protects “independent contractors” although workers classified as “independent contractors” are generally not entitled to the same employment benefits as regular employees. Yet – an employer may try to illegally categorize you as an independent contractor when you really should be labeled an employee. Let our wage and hour violations lawyers in New York City, New Jersey or Philadelphia review your working situation and decide if you have been misclassified as an independent contractor.

For every second you work, you deserve every penny you have earned. Do not let a demanding boss pressure you into an illegal and unethical working situation. Learn more about your employee rights under New York and federal law by arranging a free consultation with a wage and hour lawyer at the Derek T. Smith Law Group today.

What is the equal pay act of 1963 (EPA)?

The EPA is part of the (FLSA) Fair Labor Standards Act of 1938, which is administered and enforced by the EEOC.

The Equal Pay Act of 1963 was signed into law by President John F. Kennedy, amending the Fair Labor Standards Act, aimed to eliminate the gender wage gap between men and women in the same establishment who perform jobs that require a substantially equal skills. This Act prohibits employers who depress the wages and living standards for employees necessary to their health and efficiency. It further discrimination that prevents the maximum utilization of the available labor resources. The Act is designed to prevent labor disputes which burden, affect and obstruct commerce based on sex. Lastly, the Act relieving the burdens on commerce and the free flow of goods in commerce; and ends the type of discrimination that constitutes an unfair method of competition.

What are basic wage standards?

Under the FSLA, nonexempt employees are guaranteed a minimum wage of $7.25 per hour, as of July 24, 2009. Every nonexempt worker must be paid overtime pay at, at least, time and a half of their regular pay rates for every hour after forty (40) hours of work within a workweek.

Employers often charge employees for things such as cash or merchandise shortages, employer-required uniforms, and tools of the trade, while common practice, they are not legal when they reduce the wages of an employee below the minimum wage as required by the FLSA. While the FLSA governs minimum wage, overtime pay and employment of minors, the FLSA does not govern:

  • vacation, holiday, severance, or sick pay;
  • meal or rest periods holidays off, or vacations;
  • premium pay for weekend or holiday work;
  • pay raises or fringe benefits; or
  • a discharge notice, the reason for discharge, or immediate payment of final wages to terminated employees.

Along with the above standard practices, the FLSA does not set a limit on the number of hours an individual over the age of sixteen (16) can work during the day. The FLSA covers all employees engaged in interstate commerce. The FLSA also covers any related activities performed through unified operation or common control by any person or persons for the common business purpose and:

  • Whose annual gross volume of sales made or business done is not less than $500,000 (exclusive of excise taxes at the retail level that are separately stated); or
  • Is engaged in the operation of a hospital, an institution primarily engaged in the care of the sick, the aged, or the mentally ill who reside on the premises; a school for mentally or physically disabled or gifted children; a preschool, an elementary or secondary school, or an institution of higher education (whether operated for profit or not for profit); or
  • Is an activity of a public agency.

While the FLSA cannot cover all employees, employees not covered by the FLSA still have protection in their minimum wage, overtime pay, recordkeeping, and child labor provisions if they are individually engaged in interstate commerce. The FLSA also covers domestic workers, such as day workers, housekeepers, chauffeurs, cooks, or full-time babysitters if:

  • their cash wages from one employer in the calendar year 2010 are at least $1,700 (this calendar year threshold is adjusted by the Social Security Administration each year); or
  • they work a total of more than 8 hours a week for one or more employers.
The FLSA also covers employees who primarily work in occupations where they derive most of their income from tips. The FLSA defines these employees by whether they customarily, and regularly receive over $30 per month in tips. While an employer may consider tips as part of an employee’s wages, the employer must still pay said employee $2.13 an hour in direct wages.

There are also certain provisions for the employment of certain individuals at wages below minimum wages. This exception is carved out for student-learners, as well as full-time students in retail or service establishments, agriculture, or institutions of higher learning. This also includes individuals whose earning or productive capacity is significantly reduced by physical or mental disability.

These exceptions were created to ensure these individuals are able to find employment, despite not being able to work as efficiently as more traditional employees, however, this type of employment can is only permitted by certificates issued by the WHD.

Further, there is an exception carved out for youth workers. Employers are allowed to pay a minimum wage of not less than $4.25 per hour, for employees under twenty (20) years of age during their first ninety (90) consecutive calendar days of employment. Because this could easily lead to employers firing these employees at the eight-nine (89) day mark, the FLSA prohibits employers from firing employees in order to hire new employees under this provision.

What are child labor laws under FLSA?

The FLSA also protects against child labor. These laws restrict the number of hours an individual may work if they are under sixteen (16) and also lists what occupations are too hazardous for minors to perform. For non-exempt, non – agricultural jobs, the FLSA permits the following:

  • Youths 18 years or older may perform any job, whether hazardous or not, for unlimited hours;
  • Minors 16 and 17 years old may perform any nonhazardous job, for unlimited hours; and
  • Minors 14 and 15 years old may work outside school hours in various nonmanufacturing, nonmining, nonhazardous jobs under the following conditions: no more than 3 hours on a school day, 18 hours in a school week, 8 hours on a non-school day, or 40 hours in a non-school week. Also, work may not begin before 7 a.m., nor end after 7 p.m., except from June 1 through Labor Day, when evening hours are extended to 9 p.m. Under a special provision, youths 14 and 15 years old enrolled in an approved Work Experience and Career Exploration Program (WECEP) may be employed for up to 23 hours in school weeks and 3 hours on school days (including during school hours). In addition, academically oriented youths enrolled in an approved Work-Study Program (WSP) may be employed during school hours. If you feel you have a compensation discrimination claim, feel free to contact one of our New York City, New Jersey, Miami, San Fransisco, and Philadelphia compensation discrimination attorneys to discuss your wage and hour violations case.
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What is the Minimum Wage?

For both employees and employers, there are many ways in which disputes over wages can occur. These include such instances or allegations of failure to pay wages or compensation owed, failure to pay for overtime worked or for “off the clock” work, or improper deductions from wages. Misclassification of employees as independent contractors can also adversely affect their pay, whether this was done for that purpose or otherwise. If you have not been paid the wages or compensation to which you are entitled, or you are an employer who has been accused of unfair payment practices, talk to a New York City, New Jersey and Philadelphia Wage and Overtime attorney. A skilled wage and hour violations attorney can review the specifics of your wage and hour dispute, evaluate its strengths and weaknesses and determine the best way to approach your situation. Specific laws exist that govern pay and payroll deduction requirements, overtime and employee compensation. They include the Fair Labor Standards Act (FLSA) and many additional state and federal laws. These regulations can protect individuals and companies from unjust outcomes in such disputes when applied by insightful an experienced wage and hour lawyer in New York, New Jersey or Philadelphia. As of December 2016, the minimum wage in New York is $10.50 per hour for employers who have over 11 employees and $11.00 for employers with less than 10 employees. New Jersey’s minimum wage is $8.4 and Pennsylvania’s minimum wage is $7.25. Remember, this amount increases regularly, so make sure you are earning at least the minimum wage required at all times. Employers are NOT permitted to pay employees less than the minimum wage. If your employer is not paying you at least minimum wage and feel you have a compensation discrimination claim, feel free to contact one of our New York City, New Jersey and Philadelphia compensation discrimination attorneys to discuss your wage and hour violations case.

Rules for Tipped Employees

The standards for employees who work based on tips are a bit different. Thousands of workers in NYC depend on tip money, such as restaurant servers, hospitality workers, bartenders, hair stylists, and more.

As of December 2016, these are the tipped employee standards in New York:

Food service workers are required to be paid $7.50 per hour with a $3.50 hourly tipped credit for employers with more than 11 employees and $3.00 hourly tip credit for employers with less than 10 employees.
Service employees in restaurants and hotels are required to be paid a $5.65 hourly rate with a $3.10 per hour tip credit.

Service employees in resort hotels must be paid $9.15 per hour with a $1.85 tip credit
In short, the hourly rate of tipped employees must equal at least the minimum wage. So, your hourly rate paid by your employer plus your tips must be at least $8.75 per hour.
In some cases, unscrupulous employers pay employees less than the state minimum wage, deduct tips from employees’ paychecks, force servers and bartenders to pay for guests who walk out on their bills, and more. In regards to overtime, your time card may have been altered, so if you actually worked more than 40 hours, your time card officially reports that you worked 40 hours or less. If you suspect wrongdoing on your employer’s part, speak with our experienced wage and hour discrimination attorneys right away


Commissioned Employees

Again, the laws regarding professionals who work on commission are a bit tricky. Such commissioned workers include car salesmen, loan officer, general salespeople, and account managers. Despite what you may have heard, the Wage and Hour Attorneys at the New York City Derek T. Smith Employment law firm can assure you that you are entitled to minimum wage for all periods you do not earn a commission. Additionally, you may be entitled to overtime pay for all hours worked over forty hours per week.

Overtime Pay

According to New York law and the FLSA, the standard workweek is forty hours per week. If you are a non-exempt employee, you must be paid no less than time and one-half of your regular pay for all hours over 40. So, if you work 40 hours at a rate of $10 per hour, and one week you work 45 hours, you must receive at least $15 per hour for the five additional hours you worked.

The Act applies on a workweek basis. An employee’s workweek is a fixed and regularly recurring period of 168 hours. Overtime does not mean working on weekends or holidays, unless you are working those days and you happen to be working over 40 hours that week. If you feel you have a compensation discrimination claim, feel free to contact one of our New York City, New Jersey and Philadelphia compensation discrimination attorneys to discuss your wage and hour violations case.

If you are an employee and need representation in an employment law issue, contact us for a free review with an employment law attorney today.

Call Us To Get A Free Consultation


As many of our wage and hour violation clients know, many workers are classified as “exempt,” meaning they are exempt from overtime pay. Generally speaking, an employee usually must earn at least $455 per week to qualify as exempt. Exempt employees include:

  • Administrative workers, such as HR representatives and accountants;
  • Executives, such as CEOS and Presidents;
  • Learned professionals, such as doctors and lawyers;
  • Highly compensated professionals, including those who earn $100,000 per year or more;
  • Creative professionals, including artists and musicians;
  • Computer-related professionals, such as systems analysts; and
  • Outside salespeople

Confused about whether you are being improperly classified as a non-exempt employee? Speak with one of our wage and hour attorneys at the Derek Smith Law Group, PLLC, today to discuss your possible wage and hour discrimination claim.

Non-exempt employees

Non-exempt workers are typically hourly employees who are entitled to overtime pay. Employees who fall within this category must be paid at least the federal minimum wage for each hour worked and given overtime pay of not less than one-and-a-half times their hourly rate for any hours worked beyond 40 each week.

Don’t let an employer short your hours or force you to work endless hours for unfair compensation. Our experienced compensations discrimination attorneys at the Derek Smith Law Group, PLLC, have years of experience litigation claim based on compensation discrimination. If you feel you have a compensation discrimination claim, feel free to contact one of our New York City, New Jersey and Philadelphia compensation discrimination attorneys to discuss your wage and hour violations case.

Contact Our Compensation discrimination Attorneys

Do not be the victim of compensation discrimination or wage & hour violations. Our experienced compensation discrimination attorneys are ready to fight for and protect your rights. Our wage and hour attorneys goal is to get the best possible results for you in your wage and hour dispute or compensation discrimination case. If you have questions about compensation discrimination in the workplace or would like to speak with us regarding your case, contact the employment law firm of Derek Smith Law Group, PLLC today by calling our toll-free number 877-469-5297. Our wage and hour lawyers offer a free consultation and charge no fee unless we recover for you in your compensation discrimination EEOC claim or lawsuit.

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