What Qualifies As an Exemption Under the Fair Labor Standards Act?

March 8, 2015

The Department of Labor is currently preparing revisions to the Fair Labor Standards Act (FLSA), which will be issued in the next coming months. Most observers believe that these revisions will include adjustment to the “salary basis” test. Currently, if employees make more than $455 and fall into certain “white-collar” categories, employers may classify such workers as exempt and not be required to pay overtime. However, because this threshold is so low, often workers deserving of overtime pay fall into the exempt category and are denied the opportunity to earn such compensation.

In addition to meeting the salary requirements, employees may be considered exempt where they perform certain executive, administrative or professional duties.

The executive exemption applies to those workers whose primary duty is the management of the “enterprise” or a subdivision, and who have the authority to “hire, fire, and promote employees or make such personnel recommendations that hold weight with the employer.”

Often business owners, managers and vice presidents fall into this category, but a title alone is not enough to meet the criteria.

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Oscars Raise Issue of Equal Pay

February 25, 2015

One of the standout moments at the Oscars was actress Patricia Arquette’s call for pay equality – calling for equal pay for equal work. While accepting an award, Arquette spoke out, stating "To every woman who gave birth, to every taxpayer and citizen of this nation, we have fought for everybody else’s equal rights,” she proclaimed. “It is our time to have wage equality once and for all, and equal rights for women in the United States of America!”

An important piece of her speech was that she included “every woman who gave birth” highlighting the wage inequalities facing mothers in particular.

The Equal Pay Act is part of the Fair Labor Standards Act of 1938, as amended (FLSA), "prohibits sex-based wage discrimination between men and women in the same establishment who perform jobs that require substantially equal skill, effort and responsibility under similar working conditions."

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Department Of Labor Likely To Amend Salary Exemption

February 20, 2015

According to CNN, the Obama administration is getting closer to issuing its proposed amendment to the overtime compensation laws. The amendment will provide overtime pay to low-salaried managers who don’t currently qualify for them.

Pursuant to the Fair Labor Standards Act (FLSA), most “non-exempt” workers are entitled to overtime pay at a rate of one and one-half times their standard rate of pay for all time worked in excess of 40-hours in any one work week. However, “exempt” workers are not entitled to overtime compensation, regardless of the number of hours worked in a week.

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When Must An Intern Be Paid?

February 7, 2015

Several recent lawsuits are raising questions about interns and when they must be paid as employees pursuant to the Fair Labor Standards Act (FLSA). The FLSA provides that all workers must be compensated for their work – earning at least minimum wage and for non-exempt workers, overtime pay at a rate of one and one-half times their standard hourly wage for all time worked in excess of forty hours in any one work week. However, a very narrow set of circumstances allows employers to avoid paying some workers such as summer interns. The rules are very strict though, and companies often mistakenly (or in some situations, intentionally), violate these rules and fail to pay workers who are rightfully entitled to compensation.

In one case, Glatt v. Fox Searchlight Pictures, interns on the set of “Black Swan” successfully sued Fox for back wages. The interns had not been paid, but performed work that would typically be compensated. In another case, Wang v. Hearst, the court determined that the unpaid internships were allowable because the work the interns provided was for their “primary benefit” rather than that of the employer.

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When Must An Intern Be Paid?

February 7, 2015

Several recent lawsuits are raising questions about interns and when they must be paid as employees pursuant to the Fair Labor Standards Act (FLSA). The FLSA provides that all workers must be compensated for their work – earning at least minimum wage and for non-exempt workers, overtime pay at a rate of one and one-half times their standard hourly wage for all time worked in excess of forty hours in any one work week. However, a very narrow set of circumstances allows employers to avoid paying some workers such as summer interns. The rules are very strict though, and companies often mistakenly (or in some situations, intentionally), violate these rules and fail to pay workers who are rightfully entitled to compensation.

In one case, Glatt v. Fox Searchlight Pictures, interns on the set of “Black Swan” successfully sued Fox for back wages. The interns had not been paid, but performed work that would typically be compensated. In another case, Wang v. Hearst, the court determined that the unpaid internships were allowable because the work the interns provided was for their “primary benefit” rather than that of the employer.

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Underreporting of Time Not An Excuse To Violate the FLSA

January 31, 2015

Pursuant to the Fair Labor Standards Act (FLSA) generally employers must pay all non-exempt workers overtime compensation at a rate of time and a half for all times their standard rate of pay for all time worked in excess of forty hours in a work week. Employers are not allowed to use the excuse that employees underreported their hours as a way around this requirement, a recent wage and hour lawsuit determined.

If you have any wage and hour questions, it's a good idea to speak with an experienced Georgia wage and hour attorney to ensure you receive all the compensation you deserve.

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McDonald's Corporation Sued In Employment Discrimination Case

January 26, 2015

Legal news reports that a group of former McDonald’s workers have filed an employment discrimination lawsuit against the fast food giant. The 10 plaintiffs have alleged that they were subjected to racial discrimination and sexual harassment at the hands of managers at a Virginia franchise. The have named McDonald’s Corporate as a defendant as well, asserting that McDonald’s should pay damages because it has the power to set and enforce company policies. Even though the franchise operates as “nominally independent” in reality the restaurants are predominantly controlled by the McDonald's Corporation, the lawsuit asserts.

Some of the allegations include complaints that the plaintiffs, nine of whom are African American and one who is Hispanic, were wrongfully fired last year and replaced with mostly white workers because their managers believed there had been "too many black people [working] in the store." The lawsuit further alleges that women were harassed and groped and that minorities were subjected to racist taunts. It also claims that managers referred to one restaurant as "the ghetto store."

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Time Spent After Hours On Smart Phone May Entitle You To Overtime Compensation

January 18, 2015

With the proliferation of smart phones, it is easier than ever to communicate. An employer may send a quick text or email after work hours, and expect a response. However, the ease of communication may lead to potential Fair Labor Standards Act (FLSA) violations and abuses.

Pursuant to the FLSA, non-exempt workers are entitled to be paid at a rate of one and one-half their regular rate of pay for all hours worked in excess of 40 hours in any one work-week. If employees are required to perform after-hours tasks, they are entitled to be paid for all time worked. This includes time spent responding to emails and texts. For example, if a boss sends an email during non-working hours, such as over the weekend or at night, and requests that an employee read it, this time may be compensable. Even if a boss doesn’t explicitly request the employee read it “off hours,” most workers feel pressure to read and respond to an email immediately. Not doing so, they fear, may put them at a disadvantage.

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Are You Entitled To Overtime Pay?

January 10, 2015

With the new year upon, reforms to the Fair Labor Standard Act (FLSA) are expected. Last March President Obama signed a memo directing the Department of Labor to address certain provisions of the federal law. One of these provisions concerns the salary threshold for overtime.

Currently, the FLSA provides that all non-exempt employees who put in more than 40 hours in any workweek receive overtime pay at a rate of one and one-half times their standard rate of pay for all hours worked in excess of 40 hours in any one workweek. Whether a worker qualifies as “exempt” v. “non-exempt” depends on a variety of factors, and whether you are paid on a salary basis in an amount not less than $455/week.

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What Duties Are Intergral and Indispensable?

December 31, 2014

The Fair Labor Standards Act (FLSA) applies to most workers in the United States and provides that employees are entitled to earn at least minimum wage, and non-exempt employees must be paid overtime compensation at a rate of one and one half times their standard rate of pay for all time spent working in excess of forty hours in any one work week. Often wage and hour lawsuits are the result of the failure of employers to properly compensate workers for all time spent on the job.

If you have questions about your pay or believe that you may not have received all the compensation you deserve, it is important to consult with an experienced Atlanta wage and hour attorney right away.

As part of the FLSA, employers must compensate their employees for all time on the job – this calculation includes times spent performing duties that are “integral and indispensable” to their principal work activities. Defining just what are “integral and indispensable” duties is often a point of confusion for employers and for the courts. Recently, the Supreme Court determined that time spent going through mandatory anti-theft security screens before leaving work did not constitute an integral and indispensable part of warehouse employee’s work.

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21 States To Raise Minimum Wage In 2015

December 28, 2014

With 2015 approaching, 21 states are set to increase their minimum wage. In nine states, the raise is called for by state laws. These include Arizona, Colorado, Florida, Missouri, Montana, New Jersey, Ohio, Oregon and Washington. In another four states - Alaska, Arkansas, Nebraska and South Dakota - residents voted to increase the minimum wage.). Further, in 7 states, legislators approved the minimum wage hikes. These include Connecticut, Hawaii, Maryland, Massachusetts, New York, Rhode Island, Vermont and West Virginia, legislators approved wage increases. The minimum wage hike means that private employers such as Wal-Mart, Target and McDonalds will be raising the pay for its minimum wage earners in numerous stores across the country.

Economists estimate that this will translate into more that $838 million in economic growth as workers put their increased income back into the economy.

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Wage and Hour Collective Actions May Lead To Improved Workplace Conditions

December 21, 2014

Over the last several years, the number of wage and hour lawsuits filed against employers has steadily increased. Federal lawsuits based on violations of the Fair Labor Standards Act (FLSA) may arise in a variety of situations, but are often based on an employer’s failure to minimum wage or overtime compensation as required by law.

The FLSA provides that all employees are entitled to by paid at least minimum wage and all non exempt employees must be paid overtime compensation at a rate of one and one half times their standard rate of pay for all time worked beyond 40 hours in any work week. Many times, these claims arise as the mischaracterization of employees as “exempt v. non-exempt” or the improper failure to pay workers for all time spent on the job (i.e. not paying employees for missed lunches/breaks, requiring workers perform pre- and post- clocked in duties without pay.)

Often, where one worker’s rights have been violated, other similarly situated employees have also been deprived rightful compensation. In these instances, it may be possible to bring a special type of lawsuit called a “collective action,” a particular type of FLSA class action that will help you bring the maximum pressure to bear on your employer to change its ways and to pay you all the compensation you are owed.

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