Telecommuting has become an increasingly popular way to work, offering flexibility and often a lower stress environment. However, sometimes employment rules and laws get lost in the arrangement. As a result, its important for workers and their employers to understand how the requirements of the Fair Labor Standards Act (FLSA), impact workers.

For example – do you know if you are entitled to overtime pay? Pursuant to the FLSA, if you’re non-exempt, you may be entitled to overtime compensation at a rate of one and one half times your standard rate of pay for all time worked in excess of 40 hours in any work week. If you are working from home, calculating how many hours you are putting in may be difficult. As a result, it’s important that you and your employer develop some sort of time keeping program that accurately tracks hours worked. This can be something informal – such as a time sheet – or more formal timekeeping software program.   Additionally, its important that workers understand when they should be keeping track of their time – i.e. when they are engaged in the “principal activities” of their job as opposed to non-compensable leisure activities.   In some situations, commuting time may figure in to the calculations, while other times it does not.

Further, it is important that your employer pay you at least minimum wage. While federal minimum wage remains at $7.25/hour, some cities have higher rates, which workers are entitled to.

A recent lawsuit brought by personal trainer’s at several Gold’s Gym locations examined an important question – when are employees deemed “working on commission” pursuant to the Fair Labor Standards Act (FLSA). The answer to this question is significant. Pursuant to the FLSA, employees are “exempt” if their compensation is more than 50% based on commissions.   This means that these employees may not receive overtime pay regardless of the number of hours worked.

On the other hand, non-exempt employees may be entitled to overtime pay at a rate of one and one-half times their standard rate of pay for all time spent working in excess of 40 hours in any one work-week.

In this instance, the court determined that personal trainers were not exempt because while they may receive a share of fees paid by the customers, they are only paid after working a required number of hours. The court clarified that “working on a commission” for purposes of the FLSA exemption refers cannot depend on the number of hours worked but rather is exclusively dependent upon completing a sale.   Thus, because the personal trainers couldn’t increase their pay by being more efficient and training more people within the time period, their employer couldn’t apply the commission exemption and deprive them of the overtime pay they were lawfully entitled to.

As summer approaches, many college students and other seek summer internships. Whether a worker qualifies as an “employee” or “intern,” and whether he or she is entitled to pay often confuses both employer and worker alike, with several high profile cases exposing employers who have violated employee/intern laws and deprived workers of the compensation they are entitled to under the Fair Labor Standards Act (FLSA).

In general, the FLSA defines the word employ to mean “suffer or permit to work.”   Further, whether an intern is “employed” and entitled to compensation isn’t necessarily determined by any one factor. Rather, numerous factors are evaluated in considering whether an intern should be paid. On balance, if an internship benefits the company more than it provides more educational benefits, than an intern should be paid. However, this is a case-by-case determination, so it is critical to speak to a knowledgeable Atlanta wage and hour lawyer if you have questions.

The factors a court may consider include:

A recently filed wage and hour lawsuit examined the question of what it means to “complain”.  This issue is critical.  The Fair Labor Standards Act (FLSA) prohibits employers from retaliating against employees who have filed “any complaint” alleging violations of wage and hour laws.    The Supreme Court has defined “filing any complaint” as putting an employer on “fair notice” of the issue, specifically that the complaint is “sufficiently clear and detailed for a reasonable employer to understand it”, i.e. that the employer is aware of the issue and that taking any “negative employment actions” as the result of the complaint could subject the employer to a claim of retaliation.

Many court cases have evaluated just what constitutes a compliant.  The recent case involved a manager who raised work-related concerns to executives of his company.  Such actions are common – often identifying problem areas that need to be addresses and changed in order to comply with applicable law is part of a manager’s duties.   However here the question hinged on the type of complaints/reports expected from the manager as part of her job and promotion.  In this instance, the Director of Human Resources and Corporate Training reported to management that the company was not complying with the FLSA.    She identified violations in dozens of weekly and monthly reports, and provided copies of examples where the company had misclassified employees, as well as her requests to change the classifications.  The woman’s direct boss disapproved of the complaints and instructed her not to determine whether the company was in compliance.  Just 5 days after the woman made a new complaint, she was fired.   The woman sued, alleging retaliation.

The court determined that because determining FLSA compliance was not part of the woman’s job duties, and as such her complaints about FLSA non-compliance and her advocacy for the rights of employees to be paid in accordance could be considered “filing a complaint.”  Because of this, her termination could support a claim of retaliation.

In a victory for workers in a class action wage and hour lawsuit, the U.S. Supreme Court affirmed a $5.8 million judgment against Tyson Foods Inc. in a worker donning/doffing dispute.  The Court ruled Tuesday that workers can use averages and other statistical analyses to show similarities between disparate class members.

The members of the class asserted that they were entitled to overtime pay for time spend putting on and taking off protective gear while working in the Tyson plant.   They alleged that the failure to pay this time violated wage and hour laws.  In order to support their claims of damages, attorneys for the plaintiffs used statistical modeling for class-wide damages.

The company and business groups sought to expand on the Supreme Court’s 2011 decision blocking a massive sex-discrimination case against Wal-Mart Stores Inc. and argued against using statistical evidence to support the employees’ claims.

Final changes to the current overtime laws have been sent by the Department of Labor (DOL) to the Office of Management and Budget (OMB), one of the final steps necessary before the changes can take effect. The amendment is expected to raise the salary threshold, which serves as a threshold in determining whether a worker qualifies as exempt. Currently, the salary threshold in $455/week or $23,660 a year, and was last updated in 1975. This means that lower wage earners who make more than this amount may be considered exempt and not entitled to overtime pay, regardless of the amount earned.   Originally, the “exemptions” to the Fair Labor Standards Act (FLSA) had been adopted to apply to higher-level management employees. However, because the amount had not been changed with inflation, many more workers were considered “exempt” and thus denied the overtime pay they would have potentially been able to earn. This amount could be a significant source of take home pay.

Last year, the DOL announced its proposed rule that would increase the salary threshold to $50,440, more than double its current amount. By raising the threshold, workers who earn that much or less will be covered. Other changes to the exemptions would reduce the number of people could be denied overtime because they qualify as highly compensated or as an executive or professional worker. It is estimated that an additional 5 million people would be entitled to overtime pay under the new laws.

The FLSA can be confusing, especially as lawmakers adjust and amend its terms. At Buckley Beal, our attorneys are experienced in handling wage and hour claims and are dedicated to staying on top of changes in the laws, and helping ensure workers receive the pay they deserve. If you have questions about the new overtime pay laws, or are concerned that you are not receiving all the take home pay you are entitled to, please our knowledgeable Atlanta wage and hour lawyers at Buckley Beal, LLP for an immediate consultation.

A recent case evaluated the question of whether student athletes should be considered employees. This issue has gained significant attention recently, with several lawsuits pending against the National College Athletic Association (NCAA) concerning student-athlete’s rights.

In the current lawsuit, student athletes asserted that by virtue of their participation on Penn’s track and field team, they became employees of Penn for purposes of the FLSA entitled to be paid at least minimum wage for the “work” they performed as student athletes.  In this instance the athletes alleged that they were essentially unpaid interns.

Additionally, other similar lawsuits have addressed the same concerns. For example, Northwestern Students Athletes have sued the University asserting that they’re employees and as such, have certain rights and protections.

A class action lawsuit has been filed by numerous movie assistants against Sony Pictures alleging numerous violations of the Fair Labor Standards Act (FLSA), a federal law requiring workers be paid at least minimum wage and receive overtime compensation for all time worked in excess of 40 hours in any work week. According to the lawsuit, over 100 studio workers have filed the unpaid wage lawsuit against Sony Picture, Lions Gate Entertainment, Universal Picture and Paramount Pictures. The suit alleges that the various studios engaged “in a systematic scheme of altering plaintiffs’ paychecks in order to deprive them of their statutorily required overtime pay.”

Additional allegations include paying workers only $150/shift with no overtime, despite working 12-hour days, six-day-a-week. The plaintiffs also asserted that they were forced to work in horrible conditions, including spending an entire day with no access to bathrooms and not being allowed to take food breaks.

If the allegations are proven true, the studios could be required to pay back wages and damages.

The Department of labor (DOL) will be issuing its final amendments to the FLSA’s white-collar exemptions later this spring/early summer. The Solicitor of Labor noted that it is committed to making these effective before the end of the year.

The amendments will increase threshold at which an employee can be considered exempt v. non-exempt. Currently, in order to be considered exempt, your employer must pay you a minimum of $455/hour, and your duties must fit within one of the exempt categories – administrative, professional or executive. Whether you are considered exempt v. non-exempt can have a significant impact on your take home pay. If you are considered exempt, you are not entitled to overtime pay regardless of the number of hours worked. Typically, overtime pay is calculated at one and one-half times your standard rate of pay, and can add up to substantial additional income. The salary threshold was set to ensure that generally higher paid executives were considered exempt. However, the effect has been to exclude employees in lower paid management positions from being able to earn overtime pay. The amendments will increase the threshold, allowing millions more hard working employees to be able to earn overtime compensation.

While the final salary threshold numbers haven’t been released, observers believe that the salary will be closer to $50,000/year.

The U.S. Supreme Court has just agreed to review the circumstances under which the car exemption may apply. Pursuant to the Fair Labor Standards Act, “non-exempt” employees are generally entitled to earn overtime pay at a rate of one and one-half times their standard rate of pay for time worked in excess of 40 hours in any workweek.   However, if you are categorized as “exempt” then you may not earn overtime pay regardless of how many hours you work. Standard exemptions include the administrative, executive and professional.   Additionally, the FLSA has created an exemption for employees “primarily engaged” in selling or servicing automobiles and as such are not entitled to overtime pay.

The recent FLSA wage and hour case involves the question of whether this exemption applies to service advisors or whether these workers could pursue overtime pay. The language contained in the statute provides that the exemption applies to ““any salesman, partsman or mechanic primarily engaged in selling or servicing automobiles.”   This definition is somewhat ambiguous, with the Labor Departments stating that service advisers are nonexempt employees because they don’t personally service automobiles.  On the other hand, several  courts have held that they are exempt.

The Supreme Court has agreed to hear this case in order to resolve this split in authority over the FLSA’s exemption meaning.