Am I Entitled to Overtime Pay?
You may be entitled to overtime pay if you are a non-exempt employee under the law. It doesn't matter how your employer labels you (exempt, contractor, salaried, etc.) because the law controls how you are actually paid and whether you are entitled to overtime. Exempt employees are not entitled to overtime pay because they are exempted by the New Jersey Wage and Hour laws and the federal Fair Labor Standards Act (FLSA). Exempt employees include professional employees, administrative employees, executive employees, outside sales employees (80% of time spent selling out of the office), taxi drivers, seasonal employees, recreational employees and certain employees working in the field of agriculture.
If you do not fall into one of the categories mentioned above, you are most likely non-exempt and may be entitled to overtime pay at time and a half for any hours you work over 40 hours in a week. Your employer is not permitted to average your hours over a 2 week or month long period in order to reduce your overtime.
You cannot waiver your right overtime compensation. Any agreement between you and your employer to waive overtime pay or to accept less than time and a half is unenforceable and you are entitled to the full pay.
You are also entitled to overtime even if your employer did not ask you to work extra hours. The law only requires that your employer know that you were working additional hours. If you show up to work and your employer does not let you clock in and you are performing work, you are entitled to payment for the time you are working and overtime pay. For example, you may be at work at 8:30 a.m. and reviewing emails at your computer. Your employer knows you get in early, but won't let you clock-in until 9:00 a.m. You are entitled to an additional 30 minutes of pay and possibly overtime.
If you believe that you are entitled to overtime pay and have been denied overtime, please contact us for a free consultation. For more information please read "Are you entitled to overtime." Dated: April 7, 2010 - Tom McKinney
Verbal Employment Contract in New Jersey
Can you have a verbal employment contract or employment agreement with your company? The answer is yes. New Jersey is an at-will employment state which means that you can quit your employment at anytime and for any reason. The company can also terminate your employment at anytime, and for any reason, for cause or for no cause at all. However, if you were offered an employment contract -- either in writing or verbally -- you may not be able to be terminated by your company without cause or whatever else was agreed to between you and the company. In order for a verbal employment agreement to be enforceable, you must be able to demonstrate (1) a definite, clear, oral promise of employment; (2) the definite, oral promise of employment was made to you by a person who had the authority to make this promise and the authority to bind the the company; and (3) you must acted in reliance upon this promise. A verbal employment agreement is most commonly found in the situation where you have received an offer from a competitor and the company wants to prevent you from accepting that employment and persuads you to decline the competitor's offer by promising continued employment if you decline declined the competitor’s offer. Dated: April 5, 2010 - Tom McKinney Non-Compete Agreement In Sale of Business
New Jersey courts will only enforce a covenant not to compete (non-compete agreement) in an employment contract if it is reasonable under the Solari/Whitmyer test. A non-compete agreement or restrictive covenant is reasonable under that test if it: (1) protects legitimate interests of the employer; (2) does not impose an undue hardship on the employee; and (3) is not injurious to the public. However, even if the restrictive covenant is found to be enforceable, it may be limited in its application concerning its geographical area, its period of enforceability, and its scope of activity under what is known as the blue pencil rule. When a non-compete agreement or restrictive covenant is ancillary to the purchase of a business, it is accorded far more latitude than a non-compete in an employment contract. This is why you will see non-compete provisions regarding the sale of a business that has a period of enforceability for 5 years. Whereas a non-compete agreement in an employment contract is typically has a period of enforceability of 2 years. Dated: March 30, 2010 - Tom McKinney
Non-Compete Agreements in New Jersey are Construed Very Narrowly
Non-Compete Agreements must state specifically the type of competition that the employee is prohibited from doing during the non-compete period. In KVL Audio Visual Services v. Hackworth (NJ Appellate Division, January 15, 2010), involved a non-compete clause prohibiting the employees from “accepting employment by or rendering services to any other business competing with [Employer] within a fifty mile radius of [Employer’s location], for a period of one year.”
The employee left the employment of the employer and began working for a competitor. The employer filed a lawsuit against the employee to enforce the non-compete agreement. The employer described its business of providing services to the hotel; whereas the employee’s new company described itself as providing business to the customers of the hotel. Accordingly, the Court interpreted the non-compete agreement very narrowly and ruled that the employee did not violate the terms of the non-compete. Accordingly, if you have a non-compete agreement with your former employer and are going into a related field, it is important to review your employment agreement closely with an employment attorney and determine whether your former employer can enforce the terms of the non-compete agreement. Dated: March 27, 2010 - Tom McKinney |
You Can Be Sexually Harassed by a Customer, Not Just a Boss or Coworker
New Jersey law outlaws any form of discrimination or harassment due to a protected trait in both the employment setting and in so-called "refusal to deal" cases between vendors and customers. For example, in a recent case, a woman who owns a tire company sued a rental company customer for ending the business relationship after she refused the customer's sexual advances. The court ruled that the woman's allegations of "quid pro quo" sexual harassment that resulted in the termination of the contract stated a valid claim for discriminatory refusal to do business in violation of the Law Against Discrimination. While this court ruling dealt with harassment due to sex, this principle of law applies to harassment due to race, religion, sexual orientation, disability, and any other protected trait. March 27, 2010 - Paul Castronovo - Castronovo & McKinney - NJ Discrimination Lawyer Careful, Your Boss Is Reading Your Personal Emails
New Jersey employment attorneys agree that an employer has the right to read email of its employees that is sent or received on an email account owned by the employer. But does the employer have the right to read an employee's email on her personal, password-protected Yahoo email account just because she read it on a computer owned by the employer? Right now, the answer is no. In a case where the employer's lawyers read the privileged communications between its employee and her lawyer, an appellate court in New Jersey ruled that such a practice is an invasion of privacy that serves no legitimate business purpose. The Supreme Court of New Jersey is now considering the case and will provide the final decision on this issue in the next few months. In the meantime, be careful and avoid sending or reading anything personal on a machine owned by the boss. March 26, 2010 - Paul Castronovo - Castronovo & McKinney - NJ Discrimination Lawyer
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