Overtime Lawyer Blog

In a significant Supreme Court employment law decision on behalf of workers, the Supreme Court has recently determined that an oral complaint of a violation of the Fair Labor Standards Act is protected by the FLSA’s “anti-retaliation” provisions. FLSA violations include, but are not limited to, actions that deny workers’ rights to minimum wage and overtime pay. Under federal law, if an employee “files any complaint” alleging violations of the FLSA the employer may be subject to a retaliation lawsuit if they then take “negative employment actions” against that employee. Negative employment actions include actions such as firing an employee, scheduling worse hours or transferring an employee to an inconvenient work location.

Here, an employee – Kevin Kasten - complained several times to HR personnel about the location of time clocks at a plastic corporation. He claimed that he and other workers were not paid for time spent donning and doffing because the time clocks were located outside the dressing areas. Kasten was then fired. The company argued that since the employee did not make a written complaint – only oral – he was not protected from retaliation.

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Is a staffing agency required to pay overtime?

Yes. According to a recent case, if you are entitled to overtime pay, it may be a violation of the Fair Labor Standards Act if a staffing agency does not pay you all the compensation you are entitled to.

In the staffing agency case, a hotel and restaurant company named “The 1760 Society Inc.” moved its employees off the company’s payroll and placed them on the payroll of a staffing company. The staffing company then paid the worker’s wages under a contract with the employer.

While still working the same number of hours and performing the same duties, the workers were then classified as “independent contractors” and no longer received overtime pay or had taxes withheld from their wages. New hires were also classified and paid improperly.

After an investigation, the Department of Labor determined that the workers were owed back wages and damages, stating that the Wage and Hour division, “wants to send a strong message that employers cannot evade their responsibility under the law by using staffing agencies or labor contractors. These business practices are not a legal way to reduce labor costs.”

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Many Atlanta mothers returning to work after giving birth want to continue breastfeeding at-work but wonder about finding the time to pump on the job and if they have any rights to do so.

In an effort to encourage breast-feeding and protect women who want to take time out to pump or breastfeed, the Department of Labor recently enacted the “Break Time for Nursing Mothers” law requiring certain employers provide time out for breastfeeding. Many states also have laws providing breastfeeding rights at work.

While the DOL is working on fine-tuning the guidelines surrounding this regulation, a few important rules exist.

First, the law requires that companies with at least 50 employees must provide a “reasonable time and space” – not a bathroom – to pump milk until the baby is a year old.

The DOL has requested comments from interested parties to determine how much time is reasonable and what the space should look like.

Also, the breastfeeding law was passed as an amendment to the Fair Labor Standards Act (FLSA). As a result, anyone covered by the FLSA is covered by this law. This means that the government is serious about protecting a woman’s right to breastfeed.

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In a victory for workers, the U.S. Supreme Court let stand a 2d Circuit decision stating that pharmaceutical sales reps are entitled to overtime pay.

In Novartis, the 2d Circuit court determined that pharmaceutical sales reps are not “outside sales” people and are covered by federal wage and hour laws, entitling them to overtime pay.

The court’s reason? Pharmaceutical reps do not actually make sales - they promote drugs to doctors who they hope will then prescribe these drugs. The 2d Circuit also determined that the reps don’t fit into other categories of exemptions – such as administrative - because they do not exercise any of their own decision-making authority or independent judgment in promoting the drug sales.

The Supreme Court declined requests by Novartis to review this decision.

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A Maryland Congresswoman has introduced a new bill to amend federal law regarding the way “tipped employees” are paid. The bill – known as WAGES [working for adequate gains for employment in services] would require employers pay a base salary of at least $5.50, up 158% from its current $2.13.

Tipped employees – such as waiters and waitresses – are guaranteed minimum wage and overtime under federal law. The bill will not affect worker’s legal rights to demand fair compensation. Even if it doesn’t pass, those rights remain in place.

Instead this bill seeks to raise the amount employers must pay in direct wages to workers. Supporters see this as an important measure to ensure tipped workers receive adequate pay. Depending on the amount of tips earned, a tipped worker’s take home pay could increase.

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