Wage Violations in the Nail Salon Industry
Since the New York Times ran a story on wage violations in the nail salon industry, many people have become aware of the horrifying work conditions for manicurists and others in this industry. In addition to health violations, many owners fail to pay workers minimum wage or overtime, and many employees are denied their lunch or rest breaks. The Fair Labor Standards Act and other laws require salons to provide much better conditions for their employees. You are entitled to be paid all of your wages. The wage violations lawyers at Phillips & Associates are aggressive advocates for New York City workers whose rights have been violated.Asserting Your Rights against a Nail Salon Employer
Tipped workers in New York are supposed to make at least the state's full minimum wage. When they do not, their employer must make up the difference. Nail salons may not pressure workers to punch in after receiving their first customer, to do side work when they are not clocked in, or to stay beyond their regular hours to clean or organize supplies without being paid overtime.
Employees covered by the Fair Labor Standards Act (FLSA) must be paid overtime rates when they work more than 40 hours in a workweek. Overtime is paid at one and a half times an employee's regular rate of pay for those hours they work over 40 in a workweek. However, the FLSA does not require overtime for work on weekends or holidays unless the overtime hours are worked on those days. Sometimes, a tipped employee's hours worked are eight hours, but his or her "spread of hours" is longer. It is not uncommon for an employer to commit a spread of hours violation.
In New York, an employer must provide an extra hour of pay to those employees whose workdays are more than 10 hours, including lunch break and rest breaks, even if they do not qualify for overtime. Basically, this ensures that when employees work two half shifts separated by several hours, they are more fairly compensated. While tip pooling and tip credits are permitted for nail salon workers, an employer cannot get a tip credit for the extra hour of minimum wage pay that must be paid as spread of hours pay.
Other rules must be followed in connection with tips. For example, the manager of the nail salon, because of his or her substantial authority over workers, cannot participate in the tip pool. Similarly, a janitor for the salon who does not interact with customers cannot participate in the tip pool. The tip credit an employer may take varies depending on the industry and the year it was taken.
Misclassification issues are also likely to arise for workers in nail salons. In some cases, people who work in a nail salon are misclassified as independent contractors or exempt workers in order to save the employer money. Whether you can fairly be considered an independent contractor hinges on several different factors, as well as depending on whether your claim is based on the Fair Labor Standards Act (FLSA) or the New York Labor Law. For both tests, however, the court will look at the degree of control your boss exercises over you. If you receive a salary, you should be aware that you must receive overtime. If your employer does not pay overtime, this is only acceptable if you qualify for an FLSA overtime exemption classification, such as an administrative or executive exemption. In most cases, nail salon employees will not meet this standard and entitled to overtime pay.
If you bring a private lawsuit under the federal Fair Labor Standards Act (FLSA) for violations of minimum wage or overtime laws, the employer can potentially be liable for shortfall and liquidated damages. Under New York's Labor Law, when an employer unlawfully withholds wages, you can sue not only for unpaid wages but also for 100% of unpaid wages in liquidated damages as a penalty. Any judgment under this law that goes unpaid for more than 90 days automatically increases by 15% as an additional penalty.Seek Legal Representation in New York City for a Wage and Hour Claim
Employees of nail salons should document any abuses they believe are occurring in the workplace, including wage violations. If you and your coworkers suspect you are not getting paid overtime or minimum wage as you deserve, you should consult a New York City attorney. Call Phillips & Associates at (212) 248-7431 or contact us through our online form to set up a free appointment. We serve individuals across the five boroughs of Manhattan, Queens, the Bronx, Brooklyn, and Staten Island, as well as in Westchester County and Long Island.
PHILLIPS & ASSOCIATES
45 Broadway, #430
New York, NY 10006