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Tina
Tina, Lawyer
Category: Employment Law
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Experience:  JD, BBA, recognized by ABA for excellence.
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Hello, I am a Petitioner against an Order To Comply from the

Customer Question

Hello, I am a Petitioner against an Order To Comply from the NYS DOL. There have been 2 hearings the Industrial Board of Appeals and the matter largely hinges on whether the 4 claimants were "professionals" under NYS law and therefore exempt from wage protection under 190.7. I am now writing (pro se) a Memorandum of Law as requested by the Judge in support of my Petition to Dismiss the OTC. Three of the claimants are sound mixers and one is a video editor. Any advice would be GREAT! Thank You
Submitted: 1 year ago.
Category: Employment Law
Expert:  Marsha411JD replied 1 year ago.
Hello,

Thank you for the information. Just to be clear about what services we can and cannot provide on this Site, I am not allowed per the TOS that you and I agreed to as Users of this Site to provide legal advice or a legal opinion, but instead can provide legal information about a particular issue. That is because we cannot form an attorney-client relationship.

So, I would not be able to help you with drafting issues for your Memorandum of Law or provide you with case law. I can discuss what NYS and Federal requires in the case of "creative professionals." But that is about it. If you need more than that, you really do want to find a local attorney who can provide you with unbundled legal assistance. In other words, you can get someone to help you with your MOL, but no further representation. If you want to control costs, that is an option.

Anyway, let me know if you just need to know what the law says is required to be considered an exempt creative professional, and I can provide that to you.
Customer: replied 1 year ago.

Hello and thanks for your reply - I am familiar with the language in


190.7 and the definition of a Professional under NYS law that I've pasted below (the bold section makes this proceeding rhetorical but I must submit my papers to convince the judge) but was hoping you could help me find supporting case law or give me other input to include in my MOL. Is that not possible? Thanks again


 


DEFINITION OF PROFESSIONAL UNDER NYS LAW:




Professional


To qualify as a bona fide professional employee, all of the following tests must be met:


The employee’s primary duty consists of the performance of work that:


• _Requires knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from


o A general academic education


o An apprenticeship


o Training in the performance of routine mental, manual, or physical processes


 


or


• _Is original and creative in a recognized field of artistic endeavor, and produces a result that depends primarily on the invention, imagination, or talent of the employee



The employee’s work:


• _Requires the consistent exercise of discretion and judgment in its performance


• _Is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical or physical work)


• _Is of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time


 


The employee must be paid in excess of $900 per week.
Expert:  Marsha411JD replied 1 year ago.
Hello again Mark and thank you for your reply. Unfortunately I don't have access to the information you are looking for. I will OPT OUT of the question and perhaps another Expert can provide you with some caselaw to support your position. But, in general, you will need to provide enough facts to support that these workers are not merely engaged in mechanical type work, but meet each of those criteria listed under the law. So, it will be specific facts that carry the day and it is fairly unlikely that there will be a case on point, but I will open up your question to someone else who might know of one.

No need to reply to this information request as that will slow the process of finding you another Expert. I apologize for the delay.
Expert:  socrateaser replied 1 year ago.
Hello,

Different contributor here. Please permit me to assist. I have comprehensive access to the Westlaw proprietary legal research system -- which is one of the two largest legal data services in the world. Before, I conduct any research, I need to confirm two issues:

1. Are are seeking to prove that your opponents are in fact professionals under NY labor law (y/n)?

2. If there is no case law discussing whether a recording engineer/sound mixer, or video editor is considered under the labor laws, are you prepared to pay for that result (y/n)?

Re #2, I may be able to find something useful, though not directly related. However, if you are only interested in an on point case, then there is little point in my conducting the research, because the odds of that is extremely low, in my opinion.

Thanks in advance.

Thanks in advance.
Customer: replied 1 year ago.

Thanks for your reply - yes I am seeking t prove that the claimants are professionals under NYS law but I think I should pass on you offer of research as I understand that I am probably looking for something too specific...


Thanks again

Expert:  socrateaser replied 1 year ago.
If you change your mind, I'll be here.

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Tina
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JD, BBA, recognized by ABA for excellence.