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What Happens If the NYSDOL Dismisses A Complaint?

New York, NY |

I found out that a former employer had misclassified me as exempt when I was not. I filed a complaint with the NYSDOL for overtime and I waited. This week, over 2 years later, a DOL supervisor called to say my case was being dismissed because I was a "Highly Compensated" employee. I said, "But I do not fit that exemption because I did not earn $100K." Then she said, "You signed a "general release" when you took severance so we will dismiss because of that." I said "Isn't the agreement unenforceable because an employee cannot sign away rights to overtime?" Annoyed she shouted, "Look, the DOL does not have to take every case, okay?" So my complaint is dismissed because the DOL doesn't feel like doing their job. Can I still file a complaint in court?

Attorney Answers 3

Posted

First, I am sorry to hear that the administrative process failed you. Next this issue is pretty complicated and depends very much on the specific facts of your engagement as an employee. You may, or am not, have recourse. Feel free to email or call me and I can point you in the right direction.

Ryan Finn * 518.213.0115 * Rfinn@hackermurphy.com * Referrals are the highest form of compliment * Hacker Murphy serves clients throughout New York State and always pays referring attorneys a reasonable referral fee

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Posted

Your problem is that the statute of limitations has now run out. I would suggest contacting the investigator's supervisor or the law department of the DOL to see if they will pursue your cases any further.

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Posted

Unfortunately, I was talking to a DOL Supervisor. After languishing for over a year, my case was finally assigned to an investigator. She seemed to be in total agreement with me that the former employer had misclassified their workers (and continued to do so). Then she handed her findings over to her supervisor. That man is the one who told me he was inclined to dismiss because of my salary. He seemed completely ignorant of the labor law, not even versed in the info I found readily online! The original investigator suggested I speak to his supervisor and that was the woman I spoke to this week. She was no help, displaying the same lack of information and indifference. Both acted like I was not important because I was a white collar worker. They kept saying they had other cases that involved blue collar workers who had waited longer than I, and that they were very busy, and not required to take every case that came across their desk etc. I just found an ABC News expose report from 2009 about the DOL's glaring incompetence called "Caught on Tape: Government Ineptitude Every year, bosses steal what could be billions in wages from their workers – and the federal government has largely failed to protect employees from such abuse, an undercover investigation has found.": http://abcnews.go.com/Blotter/story?id=7163805&page=1 Sigh. If I knew that they were so backlogged and unwilling to actually work I would have just hired a lawyer in the first place.

Posted

You need to sit down with an experienced employment attorney immediately. The down side is that if an employment attorney is able to pursue this for you, you will likely end up giving them 33%, however the bright side is that unlike that DOL worker, the employment attorney will be motivated to pursue your claims!

This answer does not constitute legal advice and you should contact an attorney to confirm or research further any statements made in this answer. Any statements of fact or law I have made in this answer pertain solely to New York State and should not be relied upon in any way in any other jurisdiction. Additionally, we also encourage you to reach out to us via Twitter (https://twitter.com/#!/WhiteRoseMarks) or Facebook (http://www.facebook.com/WhiteRoseMarks) if you have follow up questions as we do not monitor questions after providing an initial answer.

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