August 12, 2020

Volume X, Number 225

August 11, 2020

Subscribe to Latest Legal News and Analysis

August 10, 2020

Subscribe to Latest Legal News and Analysis

NY Labor Law Watchdog Hit With COVID-19 Overtime Lawsuit Of Its Own

As we reach the dog days of summer, the Barnes & Thornburg Wage and Hour Practice Group’s COVID-19 related workplace litigation tracker continues to analyze and summarize complaints around the country. We hope that the tracker’s interactive functionality allows readers to digest the summaries and see the evolving trends in a number of useful ways.

While we continue to see employment cases related to COVID-19 rise around the country, as well as anecdotal evidence of a rise in workplace class and collective actions generally, we are also seeing unique cases filed that are interesting for reasons unrelated to the overall trends. This week’s spotlight shines on one such case, in which employees of a state department of labor allege that their employer, the state department of labor, failed to pay them at the correct overtime rate. The veracity of the allegations are, at this point, untested, but paint a picture of schadenfreude that many employers in New York will no doubt find rich. 

In Spence, et al. v. State of New York, the plaintiffs, state employees of the New York Department of Labor, allege that they were denied appropriate overtime pay in violation of the Fair Labor Standards Act and New York law. The plaintiffs allege that “the spread of coronavirus throughout New York and the United States led to the massive increase in claims for benefits and [unemployment insurance] by individuals and business owners facing unemployment and economic strain.”

As such, the plaintiffs claim that during the course of the COVID-19 pandemic, “various New York State Executive Branch agencies (including, but not limited to, the [New York Department of Labor]) began offering overtime compensation opportunities to their employees … to assist the DOL with the massive increase in claims for benefits and Unemployment Insurance.” The complaint alleges that employees were required to work at least 15 hours of overtime per week beginning in May and 7.5 hours of overtime per week in July. The plaintiffs claim that their overtime rate was improperly “computed using a lower rate than their regular hourly rate,” in violation of the FLSA and New York law.

Although this case presents a unique fact pattern, the lesson is broadly applicable. Now, as ever, it is important to ensure compliance with the technical aspects of state and federal wage and hour laws and regulations. Because if a state watchdog for wage and hour violations can (allegedly) get it wrong, any employer could potentially make the same foot fault. 

Our thanks to those who joined our webinar this week. Contributors to the COVID-19 Related Workplace Litigation Tracker will continue to present on the trends we are seeing in our monthly webinar, with the next one scheduled for Aug. 26. We will continue to track these trends as they unfold, and will continue to update the tracker each week. As always, stay tuned.

© 2020 BARNES & THORNBURG LLPNational Law Review, Volume X, Number 212


About this Author

Peter J. Wozniak Barnes Thornburg Chicago  Labor Employment

Pete Wozniak is a vigorous advocate who strives to help his clients navigate issues that can be fraught with challenges as painlessly and efficiently as possible. He is a candid and personable counselor, offering his clients direct advice by leveraging his deep experience performing a broad range of outcome critical functions for complex labor and employment matters.

Pete represents clients across a number of industries, including transportation and logistics, restaurants, retail, manufacturing, and temporary staffing. Handling a number of high profile matters, he identifies the...

Mark Wallin, Attorney, BT, Chicago, Labor Employment
Of Counsel

In order to provide the best counsel, Mark Wallin believes it is his role to understand his clients’ business needs so he can help them determine what resolution will provide the most benefit. His keen ability to understand his clients’ practical concerns allows him to advise on the best path to successfully resolve issues – whether through traditional litigation or negotiated resolution.

In the course of his practice, Mark has focused on providing the highest-level of service to his clients and building long-term relationships. Specifically, he defends employers in a wide range of employment matters including wage and hour class and collective actions, as well as complex, multi-plaintiff and single plaintiff employment discrimination claims brought not only by private plaintiffs but also initiated by the Equal Employment Opportunity Commission (EEOC).

Mark has successfully represented companies of virtually all sizes, litigating matters across multiple areas of the law, from the pleading stage through appeal. He has also represented clients in arbitrations and before administrative bodies.

Mark vigilantly stays abreast of cases, laws, and trends that may impact his clients coming out of the courts, Congress and the state legislature, as well as the U.S. Department of Labor, the EEOC, and state regulatory agencies. He strives to keep a watchful eye on how labor and employment related laws are evolving so as to proactively advise clients.

In addition to his regular legal practice, Mark has undertaken several pro bono cases including trying criminal jury trials in state and federal court, and representing indigent plaintiffs in civil rights matters as part of the federal Trial Bar.

Mark began honing his litigation skill during law school when he interned at the U.S. Attorney’s office for the Northern District of Illinois, where he handled both civil and criminal issues. He also interned for a judge on the U.S. Court of Appeals for the Seventh Circuit, which gave him a unique vantage of seeing the issues from the court’s perspective.


Alex focuses his practice on assisting employers facing various employment litigation issues in federal and state courts. Specifically, he counsels and represents employers in a range of actions involving harassment, retaliation, discrimination, wrongful termination, and wage and hour claims.

He understands the nuances of helping clients document and present a strong case. His litigation experience includes serving as, while with a Michigan law firm, a special assistant attorney general representing the Michigan Department of Transportation in various litigation proceedings. For...