In recent years, many employers have decided to misclassify certain workers as independent contractors, rather than employees.  Doing so allows companies to save significant expenses such as payroll taxes, unemployment insurance, workers’ compensation insurance, and other expenses typically paid by employers.  Additionally, misclassifying workers as independent contractors enables the employers to avoid various obligations they would have to employees in terms of compliance with minimum wage and overtime laws (both the federal Fair Labor Standards Act (“FLSA”) and similar state laws) or providing benefits such as health insurance or paid vacation time. 

            The practice of misclassifying workers as independent contractors became particularly widespread after Uber and Lyft paved the way by using app-based platforms to hire and assign workers.  Other industries have seized upon the app-based model, reclassifying workers who had always been considered employees as independent contractors, such as:

• Nurses employed through staffing agencies;
• Other employees hired through employment agencies;
• Technicians;
• Agricultural workers;
• Security guards; and
• Janitors/Cleaning staff.

            Along with the expansion of the misclassification practice came more complaints from workers about their pay and working conditions, generating more lawsuits.  In light of the frequency of challenges to whether workers are truly independent contractors, courts and government regulators have been reviewing the standards used to make the determination of who is properly classified as an independent contractor and who is an employee. 

            In federal courts, for approximately 75 years, the overall analysis was designed to look at the “economic realities” of the arrangement between the employer and worker.  The courts set out a number of criteria to consider:

• Whether person performing the services is engaged in their own business or practice from which they can profit from their own managerial skill (and face risk of loss if the business does not succeed);
• The worker’s investment in equipment, tools, and materials required to perform the work;
• The extent of permanence of the work relationship;
• The nature and degree of control by the employer over the worker (including the extent of direct supervision; control over schedule and pricing; and quality control);
• Whether the work that is done is an important part of the employer’s regular business; and
• The degree of skill and independent initiative required to perform the work.

            In early January 2021, in the waning days of the Trump administration, the United States Department of Labor (“DOL”), which oversees enforcement of federal wage and hour laws (i.e., the FLSA), issued a rule intended to narrow the application of the factors above as to who is an employee, resulting in a more favorable set of rules for employers.  The current DOL Secretary is now seeking to reverse the impact of that letter, issuing a proposed rule in October 2022, which would keep in place the traditional criteria outlined above.  In response to the proposed rule, parties on either side of the issue were able to submit comments to the DOL through December 15, 2022. 

            Trief & Olk represents employees in actions under the FLSA and state laws in individual as well as collective or class actions challenging unlawful wage and hour practices, including misclassification of employees as independent contractors or as exempt from minimum wage and overtime requirements.  We will continue to monitor the status of the DOL’s rule regarding independent contractor classification and provide updates as applicable.  If you believe your employer has incorrectly classified you as an independent contractor, please contact us.

            After a bench trial presided over by Magistrate Judge Roanne Mann in the United States District Court for the Eastern District of New York, Trief & Olk was victorious against a Brooklyn-based supermarket, 5^th Ave. Kings Fruit & Vegetables Corp. (known as 5^th Ave. Kings Supermarket) and its owner, winning minimum wage and overtime back-pay for our client, Leonardo Aponte.  Mr. Aponte worked the overnight shift in the Defendants’ store for many years but was not paid minimum wage or overtime as required by the federal Fair Labor Standards Act (“FLSA”) and New York Labor Law (“NYLL”).  The Defendants’ position was that Mr. Aponte was simply not an employee at all, suggesting that he chose to travel from the Bronx to Brooklyn at 11:00 pm five or six nights a week, just to spend time hanging around the store.  Magistrate Judge Mann rejected this version of events, finding the testimony of the storeowner not to be credible.  In contrast, the court viewed Mr. Aponte as a reliable witness, particularly given that his testimony was supported with other evidence such as photos and testimony of a fellow employee.  She thus concluded that Mr. Aponte was an employee and had not been properly paid.  See Aponte v. 5^th Ave. Kings Fruit & Vegetables Corp., et al., 2022 WL 3655185 (E.D.N.Y. Aug. 25, 2022).

Click here to view the full case.

If you believe that you have a claim against an employer for failure to pay proper wages or other violations of federal or state wage and hour laws, feel free to contact Trief & Olk for a consultation.

Prior results do not guarantee a similar outcome.

Trief & Olk announces a $5 million settlement reached in a collective action against Defenders, Inc., filed in the United States District Court for the District of Delaware, Archer v. Defenders, Inc., No. 1:18-cv-00470-SB. The settlement provides compensation to approximately 560 security alarm installation technicians who had suffered violations under the federal Fair Labor Standards Act for the failure of Defenders, Inc. to compensate the plaintiffs for all hours worked, resulting in insufficient overtime payments.  

The Court approved the settlement on October 11, 2022, clearing the way for the plaintiffs to receive an average of $2,700 per person, with funds to be distributed to the claimants in late November based upon the length of their employment.  In its Memorandum Order approving the settlement, the Court praised the work of the attorneys and the terms of the settlement, noting that the “employees are getting a good deal and the attorneys request reasonable fees.”  For a copy of the court’s opinion, see here. The settlement was also reported by Bloomberg News on October 12, 2022.

If you believe that you have a claim against an employer for failure to pay proper wages or other violations of federal or state wage and hour laws, feel free to contact Trief & Olk for a consultation.

Prior results do not guarantee a similar outcome.

Trial attorney Ted Trief, on the morning of trial, negotiated a settlement of $2,500,000 for a plaintiff who had his right leg amputated below the knee after being struck and run over by a New York City subway.  After entering the 23^rd Street and 8^th Avenue northbound subway station, the intoxicated plaintiff fell from the subway station platform onto the train tracks.  A northbound “C” train struck and ran over the plaintiff.  The New York City Transit Authority’s defense was that this accident was solely caused by the plaintiff due to his intoxication.  Trief & Olk argued that New York City Transit Authority was responsible for plaintiff’s injuries, despite intoxication being a proximate cause, because (i) it was conceded that the train operator saw the plaintiff fall onto the tracks, (ii) the train operator failed to utilize the train’s emergency brake as she was supposed to under these circumstances and (iii) had the emergency brake been used, the train operator had ample time to stop the train prior to running over the plaintiff.  The train operator’s action were recorded on the train’s “black box”.  No settlement offers were made by defendants prior to the morning of trial.

Trief & Olk was able to reach this settlement by building an irrefutable case against the defendants through aggressive discovery tactics and a team of expert witnesses. 

After extensive motion practice, the New York City Transit Authority finally provided Trief & Olk with the pertinent documents to the prosecution of this case including the specifications for the train involved in this accident, the specifications of the train station where this accident took place and, most importantly, the Event Data Recorder for the train in question.  The subway train’s Event Data Recorder is the equivalent of a plane’s black box, an electronic recording devise that documented a second-by-second account of the actions of the subway train and of the train operator leading up to the time of this accident.  Through the Event Data Recorder, Trief & Olk learned the precise location of the train on the tracks at the time that the train operator applied the brakes, the speed of the train at the time that the train operator applied the brakes, the manner in which the train operator applied the brakes, how far the train travelled after the train operator applied the brakes, the precise location of the train on the tracks when it came to a complete stop, and the precise location of the plaintiff when he was struck by the train. 

Armed with the data regarding the subway train in question, the deposition of the train operator solidified the liability of the New York City Transit Authority for this accident.  The train operator conceded that she saw the plaintiff falling onto the tracks before the train entered the subway station and testified that she immediately applied the emergency brake to stop the train.  The Event Data Recorder confirms that the train operator applied the brakes in response to seeing the plaintiff but reveals that she did not apply the emergency brake as she claimed and had been trained to do.  Instead, she applied the regular dynamic brake that is utilized to stop the train under normal non-emergent circumstances.  Through discovery, Trief & Olk learned, by way of the New York City Transit Authority’s own studies, that the train in question would have stopped in 250 feet had the emergency brake been applied as opposed to the dynamic brake.  Due to the train operator’s failure to apply the emergency brake, the train travelled 425 feet, striking the plaintiff, before coming to a stop.  Based upon the location of the plaintiff on the tracks, the train would have stopped approximately 125 feet before reaching plaintiff had the train operator applied the emergency brake. 

Trief & Olk supported plaintiff’s case with a team of experts to explain defendant’s liability and plaintiff’s damages.  The team included an engineer to discuss how and why the train operator was negligent in the operation of the train, an orthopedist to discuss the plaintiff’s multiple injuries, including the amputation of his right leg below the knee, a prosthetics expert to discuss plaintiff’s future needs, a life care plan expert to explain the cost of all of the medical care and prosthetic replacements needed by the plaintiff for the remainder of his life and an economist to discuss the financial losses sustained by plaintiff as a result of his future medical needs and his loss of earnings. 

Trief & Olk represents individuals in a wide variety of personal injury accidents, including train and subway station accidents.  If you have been injured in a train accident, or by any other cause, contact Trief & Olk by telephone or our website submission form to find out how Trief & Olk can help you.

Trief & Olk secured a settlement of $650,000 for the family of a warehouse worker that was killed by the collapse of an industrial shelving unit.  The decedent was working for an auto parts store in its warehouse in Bronx, New York.  While attempting to retrieve auto parts from a shelf within the warehouse, the industrial shelving unit collapsed onto the decedent, crushing him and killing him almost instantaneously. 

Trief & Olk aggressively litigated this matter even before the lawsuit was filed.  Through a pre-suit Court Order, Trief & Olk’s expert was permitted to inspect the scene of the accident and shelving unit in question.  At the inspection, it was revealed that the shelving unit was never secured to the adjacent wall or to the floor as mandated by the manufacturer of the shelving unit and that the supporting crossbeams that were initially installed were not present on the date of this accident.

The death of a loved one is difficult under any circumstances, but a loved one being killed due to the negligence of another party is unfathomable.  Sadly, the laws in the State of New York do not make it any easier for the families of those that suffer a loss at the hands of a negligent party.  New York is among the very few states in this country that do not recognize the grief and sorrow that a family member goes through when they lose a loved one.  Pecuniary, or financial, losses by the family due to the death are the only recoverable compensation that the family is directly entitled to in a wrongful death action. 

The decedent was 22 years old at the time of his death, was not married, had no children and was not providing any financial support or services to anyone.  His only surviving beneficiaries were his parents.  Defendants argued that the wrongful death part of this case had no value under New York law. 

However, the family of an accident victim can also bring an action, on behalf of their deceased family member, for the conscious pain and suffering experienced by the decedent from the time of the accident to the time of the death.  Defendants argued that this portion of plaintiff’s case also had minimal value, if any, as the decedent died almost instantaneously after the accident.  The first settlement offer by the defendants’ insurance companies was a combined $100,000. 

Trief & Olk supported plaintiff’s claim of conscious pain and suffering with an expert in forensic medicine.  The expert, through thorough analysis of the autopsy findings, determined the mechanism of the decedent’s death and supported the conclusion that the decedent remained conscious for at least two minutes from the time of the accident until he lost consciousness and ultimately passed due to his devastating injury.  The expert further supported the conclusion that the decedent experienced excruciating pain and suffering during this two minute period. 

Trief & Olk represents individuals in a wide variety of personal injury actions, including workplace accidents. If you have been injured in a workplace accident, or by any other cause contact Trief & Olk by telephone or our website’s submission form to find out how Trief & Olk can help you.

In a case tried before Justice Francis A. Kahn III of the Supreme Court of New York, Bronx County, Trief & Olk successfully prevailed in claims brought against William Penn Life Insurance Co., recovering $3 million (plus interest) in insurance proceeds owed on the life of Jhonny Jaar.  You can read the decision here.

Mr. Jaar was a key executive in Global Energy Efficiency Holdings, Inc. (“Global Energy”).  Due to Mr. Jaar’s important role in the company, Global Energy purchased “key man” insurance on Mr. Jaar’s life in two policies (one issued in 2012 and the other in 2013), for coverage totaling $3 million. Early in 2014, Mr. Jaar passed away.  Global Energy submitted to William Penn a claim for the insurance benefits payable under the policies. Because Mr. Jaar’s death occurred within two years of the policies being issued – during what is known as the contestability period – William Penn was entitled to conduct an investigation to ensure that the information provided in the applications for the policies was accurate and complete. Autopsy results showed that Mr. Jaar had marijuana, ketamine, and ecstasy in his blood at the time of his death, causing William Penn to investigate Mr. Jaar’s history of using these substances.  After obtaining additional background information, William Penn denied payment of the insurance proceeds on the grounds that Mr. Jaar had smoked and/or used drugs at the time of the applications and failed to disclose these facts, materially misrepresenting the risk of insuring his life.

Global Energy filed suit for breach of contract against William Penn, claiming that Mr. Jaar did not smoke (tobacco or marijuana) or use drugs at the time of the applications but that any use of these substances began shortly before his death.  Despite testimony from every witness who knew him well (including his widow) that Mr. Jaar was not a smoker and did not use drugs in the key 2012-2013 time frame, William Penn persisted in its denial of payment based on its theory that Mr. Jaar had misrepresented his history of smoking and/or drug use.

The parties tried the case without a jury in June 2018; Justice Kahn issued his memorandum opinion on October 22, 2018, finding that William Penn did not meet its burden to establish that Mr. Jaar had made any material misrepresentation on the life insurance applications. In particular, Justice Kahn found that the testimony of William Penn’s forensic expert, Dr. Michael Baden (who served as an expert in the O.J. Simpson trial) was not convincing, particularly in light of his reliance on inadmissible, unreliable hearsay statements.

If you recently lost a loved one who had life insurance for which payment was denied or which you fear may be denied, the life insurance attorneys at Trief & Olk are available to answer your questions and represent you if life insurance has been denied. Feel free to consult our website for examples of the many successes we have had when life insurance companies denied payment or call us directly to discuss how we may help you.

Trief & Olk obtained a settlement of $4,000,000 for a plaintiff who had his left, non-dominant hand amputated in an industrial meat grinder. The plaintiff was working for an outside cleaning company and was tasked with cleaning an industrial meat grinder at a meat processing facility in Bronx, New York. While disassembling the machine, the machine’s foot pedal installed by the meat processing facility was unintentionally activated, turning the machine on and catching the plaintiff’s hand in the grinder. Trief & Olk argued that the meat processing plant was responsible for the injury because (i) it negligently altered the meat grinder in a manner that made it more dangerous, (ii) it failed to de-energize the meat grinder prior to the cleaning crew’s arrival, and (iii) it left the pedal on the floor in a location where it could be unintentionally activated. The defendant’s insurance company originally offered $500,000.

Trief & Olk was able to reach the settlement by building a case through aggressive discovery tactics and a team of experts.

The discovery started pre-suit, when Trief & Olk obtained a Court Order permitting an inspection of the machine. During that inspection, Trief & Olk discovered that the pedal on the machine lacked side protection to prevent unintentional activation of the machine. At the second inspection, the pedal had been changed to one with side protection. The meat processing facility attempted to argue that the new pedal was on the machine on the date of incident, but the photographs from the first inspection proved otherwise.

Trief & Olk was also able to obtain the deposition testimony of two employees of the meat processing facility. At those depositions, Trief & Olk exposed the fact that the machine had been altered by the meat processing facility to operate with a free-moving pedal rather than hand-operated buttons located a safe distance from the machine’s grinding mechanism. Trief & Olk also got the employees to confirm that the defendant had no de-energization policies and would routinely leave their machines plugged in with the pedals on the floor where they could be unintentionally activated by the incoming cleaning crew.

The meat processing facility attempted to pass the blame onto the plaintiff by arguing that the plaintiff was responsible for de-energizing the machine prior to cleaning. However, Trief & Olk identified OSHA regulations that placed that responsibility squarely on the meat processing facility, coupled with testimony from plaintiff’s supervisor placing the responsibility with the meat processing facility.

Trief & Olk supported plaintiff’s case with a team of experts to explain the defendant’s liability and plaintiff’s damages. The team included an engineer to discuss how and why the machine was defective, an orthopedist to discuss the plaintiff’s fractures and amputation, a prosthetics expert, a vocational rehabilitation expert to discuss plaintiff’s inability to work post-accident, and a life care plan expert to explain to the jury the cost of all of the care and replacement services needed by the plaintiff for the remainder of his life.

Trief & Olk represents individuals in a wide variety of personal injury actions, including machine and workplace accidents. If you have been injured in a machine accident, workplace accident, or by any other cause contact Trief & Olk by telephone or our website’s submission form to find out how Trief & Olk can help you.

UNLESS A SUICIDE WAS INVOLVED AND OCCURRED WITHIN CONTESTABILITY PERIOD

Many people mistakenly assume that the cause of death might impact whether the life insurance company pays the claim for life insurance. Under most circumstances, however, the cause of death would only directly impact the life insurance company’s decision to pay the benefit owed (1) if the deceased committed suicide and (2) if the death occurred within the “look back” period, referred to as the contestability period. This rule would not apply to an accidental death policy.

The contestability period, which is two years in most states (including New Jersey, New York, and Massachusetts), allows the life insurance company to review the initial application to ensure that the policy holder accurately provided all the relevant information and did not leave out any details that would have affected the type of policy issued and/or the amount of the premium charged. Additionally, if a suicide occurs within that period, the life insurance company can deny the claim for benefits, on the theory that the policy holder may have been intending to commit suicide when the policy was purchased, and that the insurance company would not have issued the policy if that information had been known in advance.

Within the contestability period, other than a suicide, the insurance company would not be directly concerned with the cause of death. For example, if the insured had a heart attack, that fact in itself would not impact whether the life insurance company pays the benefit owed. However, for any death occurring within the contestability period, the life insurance company is entitled to review the policy application and request the deceased’s medical records, to confirm that all key information had been included in the application. So, for the example of a person whose death was due to a heart attack, the life insurance company would review the application to see if any prior history of heart disease had been disclosed. If a prior history of heart disease had been listed on the life insurance application, the insurance company cannot claim that it did not have all the information necessary to properly analyze the risk of issuing the policy and to figure out the proper premium to charge. It therefore cannot point to the cause of death as a reason to deny payment of the benefits owed under policy (assuming the premiums had been paid on time). Additionally, if the medical history shows that the policy holder had no history of heart disease at the time of the application (meaning that the condition developed later on), the life insurance would not be able to deny the claim based on the cause of death. On the other hand, if the life insurance company finds that some other medical condition was not disclosed on the application, it could deny the claim, even if that other condition was completely unrelated to the cause of death. Similarly, if false financial information or other false statements were made on the policy application, the life insurance could deny the claim.

Beyond the contestability period, the cause of death is generally not relevant to the life insurance company’s determination of whether to pay the benefit. Other grounds for denial are still possible, however, such as failure to pay the premiums. 

In summary:

1. Within the contestability period:
   1. Suicide can be basis for the life insurance company’s denial; and
   2. Other causes of death would not directly be basis for life insurance company’s denial, but could provide the life insurance company to review the application to ensure that any medical information related to the cause of death had been disclosed (if known at the time of the application).

2. Beyond the contestability period: cause of death is not relevant

If you recently lost a loved one who had life insurance for which payment was denied or which you fear may be denied, the life insurance attorneys at Trief & Olk are available to answer your questions and represent you if life insurance has been denied. Feel free to consult our website for examples of the many successes we have had when life insurance companies denied payment or call us directly to discuss how we may help you.

Many life insurance companies have sold life insurance policies with the enticing premise that the premiums paid in the early years of the policy will accrue interest that will pay for the premiums owed in the later years.  These policies were marketed with illustrations showing the interest being used to pay the premiums, referring to them as “vanishing premiums.”  The theory behind policies with this structure is that the premiums are relatively high when the policy is first issued, while the policy-holder is in his or her earning prime.  The premiums paid then accumulate cash value, which generates interest that is used to pay the premiums in later years, when the policy-holder is earning less or retired.  Thus, the premiums are supposed to vanish, which is an appealing prospect for someone purchasing a whole life or universal life policy they plan to maintain until their death.  (These policies differ from a term life policy, which lasts for a fixed number of years, for which the premiums are generally much lower than whole or universal life policies offering the same level of insurance coverage.)

There is nothing inherently wrong with a vanishing premium policy; however, since interest rates are much lower in recent years than was the case when the policies were issued, the result is that the accumulated interest ends up being insufficient to pay the premiums in the long term.  So, for example, the policy-holder pays high premiums for years 1 through 15; the cash value of the accumulated interest covers the premiums for years 16-20; and then suddenly, in year 21, the insured is again asked to make a premium payment.  Having grown accustomed to not paying the premiums, the policy-holder often does not understand the change in circumstances, is confused by the notice demanding payment, or does not have the money to pay.  The unfortunate outcome in these situations is that the policy-holder does not make the required premium payment.  When this occurs, the policy is cancelled, despite the fact that thousands of dollars in premiums (or hundreds of thousands of dollars) have been paid over the course of many years and despite the fact that the illustration used in marketing the policy turns out to be incorrect. The likelihood of this occurring is particularly high when the policy-holder is elderly and may not fully comprehend complex financial documents or is in a lower earnings bracket.

If you or a family member has a life insurance policy with this type of premium structure, it is important to monitor any notices you receive from the insurance company. Be on the look-out for any notice indicating that a payment must be made by a specific date in order to avoid cancellation of the policy.  If it is not clear whether a payment is owed or whether the accrued interest is sufficient to cover the premium, contact the insurance company to make sure you understand the situation.

If you recently lost a loved one who had life insurance for which payment was denied, you may have a claim.  The life insurance attorneys at Trief & Olk are available to answer your questions and represent you if life insurance has been denied.  Feel free to consult our website for examples of the many successes we have had when life insurance companies denied payment or call us directly to discuss how we may help you.

Trief & Olk recently won an appeal of an order which granted the plaintiff summary judgment of a complex Labor Law 241(6) claim. The case involved a plaintiff who suffered an electric shock as a result of dangerous conditions at a construction site. The order, which is a ruling by the Court, finds that the building owner defendant is legally responsible for the plaintiff’s injuries, and, equally as important, the plaintiff is not at all at fault. The case will proceed to trial where a jury will determine whether a second defendant, an electrical contractor, is also partially responsible, and the value of the plaintiff’s injuries.

Trief & Olk’s success is particularly notable because summary judgment for plaintiffs with Labor Law 241(6) claims is fairly uncommon. Under Labor Law 241(6), a building owner or general contractor can be held liable for injuries at a construction site if there was a violation of New York’s Industrial Code and the violation caused the plaintiff’s injuries. Summary judgment is relatively rare, because, not only must the plaintiff demonstrate that Labor Law 241(6) was violated, but he must also demonstrate that he did not partially cause the injuries through his own negligence, known as comparative negligence. If there are any facts from which a jury may find that the plaintiff negligently caused or contributed to the incident, summary judgment will be denied so that a jury can determine the extent to which the plaintiff and the defendant(s) were at fault.

Trief & Olk was able to demonstrate to the Court that summary judgment was appropriate by use of all the tools available to the firm. Specifically, Trief & Olk was able to show through deposition testimony, accident reports, and an affidavit from the plaintiffs’ electrical engineering expert that the condition of the electrical wiring at the job site violated the Industrial Code because it was energized, not grounded, and not otherwise guarded. The defendant attempted to avoid liability by denying that the plaintiff suffered an electric shock, but Trief & Olk used objective signs of injury from the accident reports, the defendant’s own expert reports, a videotaped deposition from the plaintiff’s treating physician, and hospital records to show that, despite the defendant’s protestations, all of the evidence confirmed the electrical shock occurred.

The defendant also attempted to avoid liability by arguing that the plaintiff, a construction supervisor, was to blame for the electrical conditions at the job site. Trief & Olk defeated this argument by showing that the plaintiff argued with his boss about the electrical work, insisted that licensed contractors do the work to ensure its safety, but was overruled.

Trief & Olk also defeated the electrical contractor’s attempts to win summary judgment against the plaintiff by alerting the Court that the electrical contractor filed its motion after the deadline. While Trief & Olk had the utmost confidence that it would have defeated the electrical contractor’s motion on its merits, the Court did not even get that far, agreeing with Trief & Olk that the motion should be summarily denied as late.

Trief & Olk represents injured individuals in a variety of personal injury actions, including construction accidents. If you have been injured in a construction accident or any other cause, contact Trief & Olk by telephone or via our website’s submission form to find out more about how Trief & Olk can help you.