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.

If you have any questions about the car sales exemption, or any other wage and other concern, please do not hesitate to contact the experienced Atlanta FLSA lawyers at Buckley Beal LLP for an immediate consultation.

Continuing the trend of the last several years, 2015 set a record for the number of lawsuits filed alleging violation of the Fair Labor Standards Act (FLSA). Forecasters predict that this trend will continue throughout 2016, and perhaps even gain steam.

A number of factors have been cited as contributing to the surge in lawsuits, including an increased awareness by workers concerning their employment rights. Hopefully, as more workers fight back and demand the compensation they are entitled to, FLSA violations will decrease. Additionally, more lawsuits are predicted as changes to the FLSA are implemented later this year – likely to substantially increase the number of employees entitled to overtime compensation.   Currently, most non-exempt employees are entitled to overtime pay at a rate of one and one-half times their standard rate. On the other hand, workers who are exempt are not entitled to overtime pay regardless of how many hours worked. In order for your employer to qualify you as exempt, you must make more that $455/week and perform certain “white collar” duties. However, the salary threshold is expected to rise, increasing the potential number of workers entitled to earn overtime significantly.

Another issue that has been problematic for employers has been the evolution of the use of smart-phones and the increased expectations by employers that employees are available “24/7”. This is a grey area, and employers may be responsible to pay overtime compensation where the employees are required to answer calls, texts and emails during off work hours.

If you have questions about the FLSA or whether you have received all the compensation you are entitled to, please contact the experienced Atlanta wage and hour lawyers at Buckley Beal, LLP for an immediate consultation.

The Department of Labor (DOL) has just issued new guidance aimed at helping determine when workers can be considered a joint employee of two businesses.   Although not a policy shift, it emphasizes the need for employers to ensure they do not violate Fair Labor Standards Act (FLSA) provisions requiring workers be paid at least minimum wage, and that non-exempt employees be paid overtime compensation at a rate of one and one-half their standard rate of pay for all time worked in excess of 40 hours in any one work week.

This issue is particularly significant in “vertical joint employment” situations where workers who are placed in jobs by staffing companies, or who are hired by “subcontractors” to work at a particular business, such as is prevalent in the construction, health, and hospitality industries. In these situations, if the worker is denied benefits and compensation they are entitled to, both the owner of the company and the staffing company may be responsible for paying back wages. For example, this may occur where a hotel uses a staffing company to provide housekeeping services, if the housekeepers do not receive all the pay they deserve, both the hotel and the staffing company may be held liable for violating the FLSA and be required to pay the work.

Additionally, where a worker holds down two different jobs at two different businesses that are owned by a single company, i.e. if someone works at 2 separate retail stores that are owned by the same company, the company the hours worked at both must be combined to determine whether the employee is entitled to overtime, and both stores have liability for the proper payment of wages.   This is considered “horizontal joint employment.”

As a result of the recently released guidance, insiders believe that companies with outsourcing agreements may be more likely to be found liable for violating wage and hour laws.

For more information or if you believe that you have not received all the pay you are entitled to please contact the dedicated Atlanta employment lawyers at Buckley Beal LLP for an immediate consultation.

Many key trends concerning wage and hour laws that have emerged over the last several years will continue to be an issue for 2016.   Many of these concern violations of the Fair Labor Standards Act (FLSA), which generally provides that workers be paid minimum wage and that non-exempt employees receive overtime pay at a rate of one and one-half their standard rate of pay for all time worked in excess of 40 hours in any one work week.

For example, in 2015 prosecutions for federal and state minimum wage violations substantially increased, with the Department of Labor (DOL) stepping up its efforts to investigate and punish employers who violate the FLSA by paying its workers less than minimum wage (currently $7.25/hour, though in some states it is higher).

The push for an increase in minimum wage is a hot topic – with several cities and states considering substantial increases. While efforts to increase the federal minimum wage have been stalled, advocates continue to push for minimum wage increases.

Another frequent issue is the extent of employee misclassification – where an employer designates that a worker is an independent contractor rather than an employee or exempt instead of non-exempt. In both scenarios, workers may lose out on valuable overtime compensation that they would otherwise be entitled to.

Over the course of 2015, the DOL worked to revamp and amend the FLSA regulations, and in doing so clarified who may be qualify for one of the “white collar” exemptions for executive, administrative and professional employees. The amendments once made, will likely create a larger class of “non-exempt” employees entitled to overtime compensation. The failure to pay that overtime may constitute a violation of the FLSA.

If you have questions about wage and hour laws, or believe that your employer may have failed to pay you all the compensation you deserve, please contact the experienced Atlanta wage and hour attorneys at Buckley Beal, LLP for an immediate consultation.

Recently a number of high profile cases have raised the issue of when an intern should be considered an “employee” and thus entitled to similar benefits and protections under the law.     Several recent lawsuits have attempted to come up with guidelines to help clarify this issue.

For example, the Second Circuit looked at the situation of several interns at Fox Searchlight who worked on the film “Black Swan” and worked in the corporate office as well.   The court also reviewed a second case, concerning the work of numerous unpaid interns at several different Hearst magazines.

To reach its decision, the court evaluated 7 different factors aimed at determining whether which party is the primary beneficiary. If the worker is the primary beneficiary (such as receiving academic credit or valuable training), then he or she will likely be considered an intern and compensation may not be required. On the other hand, if the primary benefit is to the employer (such as performing work that typically is done by an employee), then the “intern” may really be an “employee” and entitled to pay and benefits.

The factors include the following:

  • Whether there’s an expectation of compensation
  • If the training received is similar to that given in an educational setting or clinic
  • How much the internship is tied to the intern’s formal education program or coursework
  • Whether the internship accommodates the intern’s academic commitments
  • The length of the internship and whether its duration is limited to a set learning period
  • Whether the interns work displaces paid employees
  • The understanding of both intern and employer concerning compensation

The 11th Circuit also evaluated the situation of student registered nurse anesthetists who were participating in a clinical program. Here significant attention was paid to the amount of time the interns worked and noted that the duration of the internship was “grossly excessive in comparison to the period of beneficial” and opened the door to the consideration that a worker may be an intern for part of the time and other times, an employee.

Due to the complexities in determining whether and under what circumstances an intern should be considered an employee, it is critical to contact an experienced Atlanta wage and hour attorney if you have any questions concerning your work status. For more information, please contact the dedicated Georgia employment lawyers at Buckley Beal, LLP for an immediate consultation.

Wage and hour violations continue to be a problem with the number of lawsuits filed for failing to comply with the Fair Labor Standards Act (FLSA) at an all time high.  In fact, the number of lawsuits filed in this area of law has increased by roughly 358% since the year 2000.

Commentators believe this may be due to a variety of different issues.   The FLSA provides generally that all workers must be paid at least minimum wage and that all non-exempt 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 40 hours in any one pay period.    Issues (and litigation) often arise in the area of overtime compensation and whether a particular employee is classified correctly.  Workers may be misclassified as independent contractors (when they are really employees) or exempt (when they are really non-exempt).  In either of these situations, the worker would be denied overtime pay he or she is rightfully entitled to.

There are several reasons why a company or employer may misclassify a worker.  Sometimes it is simply an oversight.  The FLSA laws may be confusing to some.  Further, determining whether you are an independent contractor or an employee isn’t always clear cut.  Similarly, who and who is not exempt may not be straightforward.    However, other times unscrupulous companies try to avoid paying workers what they are entitled to by intentionally placing them in the wrong category as a way to save money.

New laws have proposed, with the final version of the new regulations and changes to the FLSA set to be issued in July.  In general, these laws will likely be more inclusive, with potentially millions of additional workers entitled to bring home overtime pay.   This will likely fuel additional violations as employers try to determine who is entitled to receive overtime pay.  For questions about misclassifications, the proposed new regulations or any other wage and hour question, please contact the experienced Atlanta wage and hour lawyers at Buckley Beal LLP for an immediate consultation.

New overtime rules are expected to take effect coming in July 2016.  This is good news for many workers as it is predicted that the rules will  provide millions of Americans the opportunity to bring home overtime compensation.

Under current law, the Fair Labor Standards Act (FLSA) provides that non-exempt workers who work more 40 hours in any work week are entitled to overtime pay at a rate of one and one-half times their standard rate of pay for all extra time worked.  On the other hand, “exempt” employees are not entitled to overtime pay regardless of the number of hours worked.  In order to be considered “exempt” the law sets forth very specific guidelines, including that salaried workers meet a threshold – currently $455/week to be considered exempt.    However, because the current threshold is fairly low, many lower level salaried employees who should be entitled to receive overtime pay have been unfairly excluded.  The new law seeks to change this, by increasing the salary exemption to $970 a week.

The Department of Labor received nearly 300,000 comments on proposed changes to the law this past year, with comments closed in September.  The new final laws are estimated to be released in July.

If you have questions about how the new FLSA regulation may affect you, or any other wage and hour matter, please contact our experienced Georgia wage and hour attorneys at Buckley Beal LLP for an immediate consultation.

The Fair Labor Standards Act (FLSA) provides that all workers are entitled to be paid at least minimum wage and those who are non-exempt, are entitled to 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 work week. While this sounds like a simple rule of thumb, wage and hour lawsuits are on the rise as employers often fail to abide by the complexities of the Act, whether accidentally or intentionally.

For example, an area where many employers may get into trouble is determining when workers are required to be paid for meal breaks. A recent wage and hour case examined when workers are entitled to receive additional wages for mealtime. In this instance, the workers were corrections officers who were given one-hour meal breaks – 45 minutes of which where unpaid and 15 minutes were paid.   The officers were required to stay nearby and on-call in case of an emergency. The court reviewing the case applied a “fact-intensive inquiry” to the situation and looked at the very specific circumstances surrounding the meal breaks. This included looking at who the meal break predominantly benefits (the employer or the employee) and what, if anything, the collective bargaining agreement notes about meal time interruptions. In this instance, the court determined that generally, the officers received the benefit of the meal break, and that the collective bargaining agreement provided that the officers were entitled to overtime pay if their entire meal break was interrupted by work. As a result, the policy did not violate the FLSA. However, other courts have held employers to a stricter standard and determined that where workers are not “relieved from all duties,” meal times may be considered compensable pay and employers may be required to pay overtime compensation.

The FLSA may be confusing to employers, potentially leaving many workers without the pay they deserve. For more information or if you have any question about your pay, please contact the experienced Atlanta wage and hour lawyers at Buckley Beal for an immediate consultation.

A recent case out of the 5th circuit looked at the circumstances surrounding a tip pool arrangement and some of the various different issues to think about in determining whether the tip pool is valid.

Pursuant to the Fair Labor Standards Act (FLSA), all workers are entitled to earn at least minimum wage.  For tipped employees, determining your wages may be more challenging, however certain tip pool rules exist to ensure that where a significant part of your pay comes from tips, that you earn the required minimum standard.

The recent wage and hour lawsuit looked at the tip sharing formula set up by a restaurant.  In this situation, the restaurant required that two waiters share their tips with the “coffee man.”  The coffee man received a fixed $10 from the pool, while the waiters earned $2.13/hour plus their draw from the tip pool. The waiters asserted that this split was unfair because pursuant to the FLSA only tipped workers are allowed to participate in a tip poll – tipped workers include those those who customarily and regularly receive a certain amount of tips.  Generally, courts have reviewed the employee’s job duties to determine whether he was tipped or not, an analysis that requires a fact-intensive case-by-case inquiry.  On appeal, the court further explained that to be a tipped employee, the worker has to have at least some interaction with the customers.

The 5th Circuit held that because the coffee man had only minimal once-a-week interaction with customers, a jury could determine that he shouldn’t have been part of the tip pool.

Generally, federal law provides that tip pools are valid – as long as the employees are made aware of the arrangement, and follow other requirements as imposed by state and federal law.

For more information or if you have questions concerning your pay, please contact the knowledgeable Atlanta wage and hour lawyers at Buckley Beal, LLP for an immediate consultation.

The fight to increase the minimum wage is becoming a central issue in the upcoming presidential elections.  In a recent Republican debate, one of the first questions was whether the candidates intend to support a raise in the minimum wage, and predictably all said no.  However, this is not the end of the story.  The movement to increase the wage has increased steam across the country with many large cities adopting a higher – $15/hour wage.   The group Fight for $15- has organized protests and demonstrations throughout the United States, including Atlanta, New York City, Chicago, and Kansas City.

Numerous studies have shown that raising the minimum wage boosts incomes for lower paid workers without reducing overall employment or job growth.  Further, studies show that when the minimum wage is increased, lower wage earners turn around and spend that money in their communities on necessities such as food and housing, thereby improving local economies.

Currently, Federal Law (the Fair Labor Standards Act – FLSA) requires that all workers earn at least minimum wage.  The failure to pay any workers the amount they deserve violates federal law and may entitle them to back pay and damages.  Where a state or local law sets a higher wage, a worker is entitled to earn this amount.

Hopefully we will see raises both at the federal and state level soon.

Because the FLSA and minimum wage laws are complex, if you believe that you have not been paid the amount you deserve, please contact  the experienced Georgia wage and hour lawyers at Buckley Beal, LLP for an immediate consultation.