Overtime Lawyer Blog

A recent case out of Las Vegas places the tip sharing policies of some high profile casinos under intense scrutiny. At issue – a tip sharing policy that requires Las Vegas Strip casino workers to share their tips with their supervisors. Last week the Nevada District Court ruled that the policy in place at Wynn Resorts including Wynn Las Vegas and Encore, violates state law and that employees can’t be forced to share tips with supervisors or employees in other types of jobs.

Tip sharing policies can be complex – certain guidelines must exist to ensure workers receive all the pay they are entitled to. If you are a tipped employee and are unsure if your company’s tip sharing policy complies with federal or state law, it is important to consult with a knowledgeable Georgia overtime attorney.

Smith v. Wynn involved a dispute between table games dealer and their employer over the distribution of tips left by patrons. Wynn Resort employed several different types of tipped workers including table games dealers, slot department employees, poker dealers, valet parking attendants and cocktail waitresses. The table games department also had various types of employees – dealers, box persons and Casino Service Team Leads (CSTLs). Under the tip pooling policy, dealers were required to share their tips with the box men and CSTLs. While tip sharing is common among workers of the same job classification, sharing with supervisors may be problematic. A Nevada District Court judge determined that the policy in question violated state law.

In general, tip-sharing policies must follow certain guidelines including:

• Tips belong to employees, not the employer. Employees cannot be required to turn over part of their tips to the company except as part of a valid tip pooling arrangement.
• The employer cannot be part of a valid tip pooling arrangement
• Only employees who receive tips can be part of a pooling arrangement
• Employers must notify tipped employees of any required tip pool contribution and cannot retain employees’ tips for any other purpose.

Continue reading "Vegas Casino Case- Smith v. Wynn – Finds Tip- Sharing Policies Violate State Law" »

A case being considered by the California Supreme Court has the potential to affect meal and rest breaks for all nonunion employees. At issue in Brinker v. Superior Court is whether an employer must ensure that hourly employees take breaks.

Currently, the California law provides that workers are entitled to a meal break after five hours of work. However, in practice many workers are unable to take scheduled meal breaks as the result of excessive work loads that worker’s can’t complete in the scheduled work day.

If you have questions concerning whether you are entitled to meal and rest breaks, and whether you are entitled to compensation for this time worked, it is important to speak to an experienced Atlanta wage and hour attorney.

The case was filed by five Brinker employees on behalf of company workers statewide. An estimated 60,000 hourly workers are included in the class action lawsuit. Brinker International operates several chain restaurants including Chili’s Grill & Bar. The workers assert that during busy times, they were unable to take their scheduled breaks.

Employee representatives further allege that based on California Labor Code provisions, employers must ensure that workers actually take those breaks. Making sure that employees are allowed breaks affects “vital protections” concerning the health and safety of workers and members of the public served by them. Company representatives counter that employers must only make the breaks “available” and that workers and managers may be flexible about when the employees actually take those break. Where workers miss a meal break, they may be entitled to one hour of overtime pay.

Continue reading "California Supreme Court Hears Meal And Rest Break Case – Brinker v. Superior Court - Could Affect Workers Across The Country" »

As summer approaches and the recession continues many workers may consider taking an unpaid internship. Unpaid internships have many benefits for both employers and workers. They provide an opportunity for interns to learn skills, make connections and demonstrate their work ethic. Employers benefit by having eager workers assist them and receive training without having to pay.
However, the arrangement may also lead to exploitation. It is important for both workers and employers alike to understand what may be considered an unpaid internship and when an employer must provide proper compensation.

In order to clarify the rules, the Department of Labor has created an unpaid internship test that sets forth when workers must be paid. Generally, anyone making legitimate contributions to the workplace must be paid according to standard wage and hour laws.

The unpaid internship tests evaluates:

• If the training the intern will receive is similar to training he or she would receive in an academic environment;
• If the internship is for the benefit of the intern or the employer;
• If the intern is replacing an employee;
• If the company is deriving immediate advantage from the intern’s activities;
• If the intern entitled to full-time employment at the conclusion of the internship; and
• If both the intern and employer understand this will be an uncompensated position.

Continue reading "Summer Internships – When Does An “Unpaid Internship” Violate The Law?" »

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.

Continue reading "Georgia Working Moms To Benefit From Breastfeeding Law " »

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."

Continue reading "Supreme Court To Determine Whether Employees Are Protected From Retaliation For Making Oral Complaints" »

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?" »

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" »

A recent 11th Circuit case has determined that employees who spend time on both firefighting and law enforcement duties are entitled to overtime based on how they divide their time on each duty.

Generally, under the FLSA, employers must pay employees overtime at the rate of time-and-a-half times their regular rate of pay for all hours in excess of 40 in any work week. However, public agencies engaged in “fire protection” and “law enforcement” are subject to different rules. Under federal law, firefighters must work up to 212 hours in a 28-day period, whereas law enforcement employees need only work 171 hours. (29 U.S.C. Sec. 207(k)).

In Creemens v. City of Montgomery, 661 F.Supp.2d 1253 (M.D. Ala. 2009) the 11th U.S. Circuit Court of Appeals reviewed whether a 1999 amendment which specifically defined “fire protection” and “law enforcement” activities rendered a longstanding Department of Labor regulation obsolete. The regulation, 29 C.F.R. Sec. 553.213(b), provides that for those employees performing both fire protection and law enforcement activities, overtime is determined by how the employee spends the majority of his work time during the work period.

Last year, the lower court determined that the previous regulation was no longer valid. Cremeens v. City of Montgomery, 661 F.Supp.2d 1253 (M.D. Ala. 2009). However, earlier this month the 11th Circuit reversed this decision reasoning that the new amendment simply defined what constitutes “fire protection” and “law enforcement activities,” but didn’t impact how overtime law was applied to these job categories. As such, no conflict exists between the amendment and the regulation. Hence in this case, determining if the arson investigators are entitled to overtime, and how much, depends on how they spent the majority of their time during the pay period.

Continue reading "Police And Firefighters Entitled To Overtime Based On How They Divide Their Duties At Work" »

Information technology workers are notoriously overworked. They put in long hours, field endless emergency calls in and out of regular hours, get no credit when things go well and take the blame when anything goes wrong. Moderns cities like Atlanta have more than their share of IT workers.

But because of an often- misunderstood FLSA computer worker exemption form overtime pay, IT workers are often shut out of overtime that they are actually entitled to. This exemption has become the subject of discussion boards among the computer literate, and IT workers have been suing their companies, and winning, for denied overtime.

Employers often misinterpret a very narrow FLSA overtime exemption that applies to some computer workers, specifically exempting from overtime pay employees who are involved in the application of systems analysis techniques, or who develop or design software or operating systems, or perform related functions.

Continue reading "Overtime Pay for Information Technology Workers" »

In most overtime cases under the Fair Labor Standards Act (FLSA), the courts interpret the exemptions to the law narrowly, in favor of the employees seeking to be paid overtime. However, in a recent overtime collective action case decided by the Eleventh Circuit (the federal appeals court with jurisdiction over the federal district courts of Georgia, Florida and Alabama), the court gave the firefighter exemption a broad interpretation and denied overtime to the plaintiffs. Gonzalez v. City of Deerfield Beach, Florida.

In the case, a group of 12 firefighters/EMTs and emergency rescue supervisors employed by the City of Deerfield Beach, Florida sued the city for unpaid overtime. Although the employees had all been trained in fire suppression, only one of the plaintiffs had actually engaged in putting out fires on the job. Nevertheless, the City argued that the plaintiffs were not entitled to overtime based on the exemption for employees of a “public agency engaged in fire protection or law enforcement activities.” 29 U.S.C. § 207(k).

Continue reading "City Firefighters not Entitled to Overtime under Fair Labor Standards Act" »

Hi again, friends. We launched the Atlanta Employment Lawyer Blog several months ago and are enjoying it so much, and getting such a great response, that we decided to launch another blog—the Overtime Lawyer Blog. This one will be devoted to tracking developments under the Fair Labor Standards Act—otherwise known as the FLSA. The FLSA is the federal wage and hour law that sets forth the federal minimum wage (which is currently $6.55 per hour) and also requires that most “blue-collar” employees who work more than 40 hours in a workweek be paid overtime at a rate of one and one half times their regular rate of pay for all hours worked in excess of 40 per week.

As we explain in detail on our website, although the FLSA applies to virtually all U.S. employers, it does not guarantee that all employees receive overtime or the minimum wage. If you are exempt from the FLSA, then your employer does not have to pay you the minimum wage, and you can be required to work more than 40 hours in a week without overtime. Although the rules governing the exemptions are extremely complex, as a general rule, you are an exempt employee if you are paid on a salaried basis (in other words you receive a fixed amount of compensation every pay period no matter how much work you do) in the amount of at least $455 per week, and the type of work you perform is either executive, administrative, or professional. These types of exempt jobs basically involve work where you have substantial authority over the operations of your employer’s business, where you are involved in the administrative end of the business, or where your job requires an advanced degree. There are a few other miscellaneous exemptions that we discuss on our website, and the U.S. Department of Labor’s website also has great resources if you have any questions.

If however, you are not paid on a salaried basis, or your work is not executive, administrative, or professional in nature, then in most cases you are not exempt from the FLSA and you are entitled to overtime.

Continue reading "Welcome to the Overtime Lawyer Blog!" »