Overtime Lawyer Blog

A new lawsuit has been filed on behalf of Wal-Mart employees alleging they were denied the wage, benefits and other protections they were entitled to under the law. Specifically, the suit alleges that janitors routinely worked seven days a week and were denied overtime pay in violation of the Fair Labor Standards Act (FLSA).

Under the 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. Thus, if the janitors worked in excess of 40 hours a week, they are entitled to overtime compensation.

Other claims include allegations that workers were locked inside while they worked and that Wal-Mart acquiesced to the illegal practices, in violation of the Racketeer Influenced Corrupt Organizations Act (RICO). The lawsuit also seeks to have the janitors certified as a class.

Recently, many cases have come to light alleging violations of the FLSA among low wage earners – often immigrants who may not be aware of their rights or may fear retaliation for complaining. In the Wal-Mart case, plaintiffs allege that Wal-Mart conspired with outside cleaning companies to exploit immigrants who tend not to demand lawful compensation or humane working conditions.

Failure to pay the compensation due any exempt worker is a violation of the FLSA. Further, retaliation for complaining of violations is strictly prohibited.

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One of the oldest employment laws is the Fair Labor Standards Act (FLSA), a law enacted in the 1930s setting forth several critical employment provisions, including certain minimum wage and overtime standards intended to protect workers. The current minimum wage is $7.25 an hour. Had minimum wage kept pace with inflation, it would be above $10.00 today.

In general, minimum wage has received wide spread support. In fact, just a few years ago the Fair Minimum Wage Act of 2007 show passed Congress with strong bi-partisan support. As National Employment Law Project director Christine Owens states, “(today) Americans overwhelmingly support a minimum wage rate that will help working families make ends meet and provide the boost the economy needs for full–recovery.”

Ensuring workers receive minimum wage is as crucial now as when originally enacted. In addition to helping individuals earn a living and become self-sufficient, it benefits our communities. By increasing the amounts of money families earn, they have more money to spend on local businesses in their communities, which in turn increases the local tax base. Having a federal minimum wage reduces the need for social services, which cost taxpayers money. Minimum wage is also good for businesses. Studies have shown that ensuring a fair minimum wage reduces absenteeism and improves moral among employees, leading to higher productivity.

However, despite legislation such as the FLSA guaranteeing workers a right to minimum wage, studies show that 2.6 million Americans earn less than the federal standard.

If you believe you have been denied all the compensation you are entitled to, either as a result of the failure to pay minimum wage or overtime, you may be able to bring a claim for a violation of the FLSA.

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As the new Supreme Court session gets under way, an important case for worker’s rights will be determined. In Kasten v. Saint-Gobain, the Court will examine the issue of retaliation as it relates to the Fair Labor Standards Act (“FLSA”).

The FLSA covers a number of different areas, including minimum wage, overtime and child labor laws. Under current law, written complaints against employers for violations of the FLSA are protected from retaliation. This means that an employer may not take any adverse employment actions against employees engaged in protected activities. Specifically, the FLSA provides:

"[I]t shall be unlawful for any person . . . to discharge or in any other manner discriminate against any employee because such employee has filed any complaint.”

In Kasten v. Saint-Gobain, the employee - Kevin Kasten - verbally complained to his supervisor from October 2006 through December 2006 about the location of the time clocks and that their placement prevented employees from being paid for time spent donning and doffing their required protective gear. He also told a supervisor that he planned to bring a lawsuit based on the location of the clocks.

In December 2006, Kasten was terminated on the grounds that he had violated the company’s policy regarding clock punching. He then filed suit under the FLSA alleging that his termination had been in retaliation for his verbal complaints.

The Seventh Circuit Court of Appeals upheld the District Court’s determination that Kasten had not “filed” a complaint, an action requiring the submission of some form of writing. As a result, the protected activity necessary to give rise to a cause of action for retaliation did not exist.

The Supreme Court granted certiorari in March and will hear argument this term.

Kasten asserts that the term “filed” as used in the FLSA includes oral complaints, and that allowing verbal complaints is in furtherance of the FLSA’s statutory intent. Further, as the dissent points out, not only is the 7th Circuit is in disagreement with other circuits on this issue, but that the determination of whether a written or verbal complaint is necessary has such a “broad impact on a variety of anti-retaliation provisions, which ‘serve to protect not just the individual worker, but the means by which federal agencies become aware of unlawful labor practices' that further consideration of this topic was necessary."

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Recent NewYork Times and Huffington Post articles have focused on the prevalence of Fair Labor Standards Act (FLSA) violations amongst low wage laborers, often immigrants.

The FLSA provides many guarantees - including the guarantee of minimum wages and overtime compensation for non-exempt employees who work more than 40 hours in a work in any work-week. The FLSA also sets forth child labor laws.

According to these articles, along with much anecdotal evidence, many of these workers face “constant and commonplace” workplace exploitation. In fact, in one group of workers interviewed none had ever been paid overtime, many were routinely hired the least desirable takes, and were sometimes forced to work on their one free day. One man reported “working 12 hours/day, seven days a week, and paid only $4/hour. “

Unscrupulous employers may exploit these workers, taking advantage of employees due to their limited knowledge of employment laws and perhaps their undocumented status. U.S. Secretary of Labor Hilda Solis has recently launched a wage and hour campaign to raise awareness that labor laws protect all workers, regardless of immigration status.

However, exploitation occurs across all sectors where employers fail to pay all the compensation employees are due.

Further when “wage theft” occurs, everyone in the community suffers. While referencing New York, the same impact can occur in Atlanta, or any city where employees are denied a fair wage. A survey prepared by the National Employment Law Project (NELP) explains:

“Low-income families spend the large majority of the earnings on basic necessities, such as food, clothing and housing. Their expenditures circulate through local economies, supporting businesses and jobs. Wage theft robs local communities of this spending, and ultimately limits economic growth and vitality in …neighborhoods.”

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