Overtime Lawyer Blog

According to the New York Times, the Obama administration has started investigating pay practices throughout the health care industry after hospitals around the country have been sued based on the failure to pay proper overtime to nurses and other employees who work more than 40 hours a week.

The Fair Labor Standards Act (“FLSA”) provides that all non-exempt employees must receive overtime compensation at a rate of one and one half times their regular rate of pay for all hours worked in excess of 40 hours in any workweek. Where employers fail to pay overtime compensation, workers may have claims under the Fair Labor Standards Act (FLSA).

Recently, lawsuits in St. Louis, Boston, and California have recovered millions of dollars in back wages for employees. In many of these cases, employees asserted they were improperly classified as exempt. Employees are typically exempt if they make more than a certain amount of money per week and if they perform a certain type of “white collar” work. If they do not fall within one of these or any other exemption, employers are required to pay overtime.

Employees also alleged they were not paid for all work performed during off work time – such as during meal breaks. Where employees are required to work and unable to take scheduled meal breaks, they must be compensated.

In response to these lawsuits and a growing concern that health care workers are often denied sufficient overtime compensation based on similar practices across the health care industry, the Department of Labor has hired hundreds of new wage and hour investigators and is looking at practices in health care facilities across the country.

As one Labor Department official notes, “nursing assistants, licensed practical nurses, janitors and cooks are particularly vulnerable to wage violations.”

Continue reading " Are Hospitals Paying Workers Enough Overtime? " »

A Chicago police officer has recently filed a lawsuit claiming he is entitled to overtime compensation for hours spent responding to email off-hours. According to National Public Radio (NPR), the police officer asserts that he is entitled to a significant amount of back-pay because he was required to log onto his Blackberry to continue working even though his shift was over.

Under the Fair Labor Standards Act (FLSA), non-exempt employees are generally entitled to be paid for all time worked, including pay at a rate of one and one-half times their regular rate of pay for all hours worked in excess of 40 hours in any workweek. When hourly employees are required to carry a smart phone, and expected to respond to e-mails off hours, time spent working can add up. Even 15 minutes a day can become a significant sum when accumulated over time.

The Chicago case is not the first of its kind. Over the last several years, employees have increasingly challenged employer expectations that “they need to bring the office onto the bus,” i.e., that they work via Blackberry or smart-phone in their down-time, such as while on lunch break, commuting, or at home, without additional compensation.

Despite the attachment many of us feel for our smart phones, where employers require employees to carry a Blackberry, iPhone or other smart phone, employees may feel that they have no time-off at all. As a result, many are advocating smart-phone usage policies clearly delineating an employer’s expectations – and an employee’s right to compensation.

Continue reading " Are You Entitled To Overtime Compensation For Time Spent On Your Blackberry? " »

Earlier this week, five computer-network technicians filed suit against Goldman Sachs Group Inc., claiming that they failed to receive all overtime compensation due.

At issue, whether the technicians are considered contractors or employees. Under the Fair Labor Standards Act (FLSA), all employees who are not exempt must be paid at a rate of one and one half times their regular rate of pay for all hours worked in excess of 40 hours in any workweek. This straightforward sounding rule is incredibly complex, and is at the root of countless lawsuits.

In Bardouille v. Goldman Sachs & Co., technicians alleged that they worked more than 70 hours in a week, yet were denied overtime. More than 100 employees in New York and New Jersey were also allegedly underpaid.

Whether an individual is classified as an “employee” or “independent contractor” has significant implications for many businesses, and may substantially impact an individual’s rights to benefits and overtime compensation. Often no one specific factor conclusively answers how certain workers are categorized. Rather, courts look at a variety of factors to determine the nature of the relationship. The more evidence of an employer exercising supervision, direction and control of an individual’s work, the more likely an employer/employee relationship will be found.

Some considerations include:

• If the employer determines when, where and how services will be performed
• Whether the employer provides a facility where work is performed
• The amount of supervision provided
• Whether the employer or the worker determines the rate of pay
• The exclusivity of services
• Whether permission is required for absences
• How the worker is compensated, i.e. by salary, hourly rate of pay, or on commission

Where an employee relationship is found, workers may be entitled to substantial sums in terms of benefits and overtime compensation.

Continue reading " Technicians Sue Goldman Sachs For Overtime Pay " »

In March, the Patient Protection and Affordable Care Act (PPACA) took effect, amending Section 7 of the Fair Labor Standards Act (FLSA). The PPACA requires that employers must provide “reasonable amounts of time and a private place for breast-feeding employees to express milk.” In a recently issued fact sheet, the Wage and Hour division explains employers’ obligations regarding nursing mothers.

The fact sheet sets forth the following specific guidelines:

• Employers are required to required a “reasonable about of break time” to express milk as frequently as needed. The needs of the nursing mother will determine the frequency and length of the breaks.

• A private spot must be set aside for the mothers. Private bathrooms do not constitute “permissible locations.” The spot must serve as a functional space for expressing breast milk. If not specifically dedicated to nursing mothers, a temporary space may be sufficient if shielded from view, and free from intrusion from co-workers and the public. This space must be available until the employee’s child turns one.

• The requirements only apply to non-exempt employees. Employees are exempt if they fall into one of three principal exemptions – executive, administrative, or professional. Often determining whether you fall into an exempt category can be contentious – employers may try to classify you as exempt in order to avoid fulfilling obligations under the FLSA such as paying overtime or allowing nursing mothers a “reasonable amount of break time.”

• Where an employer has fewer than 50 employees, it need not provide a break time if compliance would impose an “undue hardship.” Factors evaluated to determine whether an undue hardship exists include size, financial resources, nature, and structure of the employer’s business.

• If an employee takes a break to express milk, employers are not require to pay for the time spent on break. However, if the employer compensates employees for other types of breaks, nursing mothers must be compensated as well.

Continue reading " Nursing Mothers Entitled To Reasonable Breaks At Work " »