Overtime Lawyer Blog

A minimum wage violation lawsuit brought on behalf of 5,500 employees against Applebee’s restaurant will proceed to trial. Pursuant to the Fair Labor Standards Act (FLSA) lawsuit, Applebee’s employees are seeking back wages for thousands of employees who were paid less than minimum wage.

The FLSA impacts nearly every employee who works for a wage in the United States and provides that workers must be paid minimum wage (the federal minimum wage provision is $7.25/hour, in some states it is higher) and all non-exempt employees must 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 hours in any work week.

If you have questions concerning your pay or believe that you have not received the minimum wage or overtime pay you are entitled to, it is important to speak to an experienced Atlanta wage and hour attorney who can review your situation and provide critical advice.

Many times issues arise when a business that employs many “tipped employees” erroneously pays other workers who only perform a portion of their work as “tipped” at the lower rate. In the Applebee’s situation, non-waiter workers claim that they were paid $2.13/hour, rather than the $7.50 they were entitled to. The non-waiter workers spent more than 20% of their time engaged in activities other than serving customers that were “non-tipped,” such as washing dishes and cleaning the restaurant. Generally, when a worker spends more than 20% of their time doing non-tipped work, they are entitled to receive standard minimum wage.

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The LA times reveals that the California labor commissioner has sued ZipRealty for nearly $18 million in a minimum wage case. At issue, the failure of the company to pay minimum wages and overtime compensation to hundreds of agents throughout the state.

Both federal and state laws set forth certain minimum wage and overtime standards applicable to nearly all U.S. employers. Federal minimum wage law – the Fair Labor Standards Act – requires that workers be paid a minimum $7.25 hour. California’s minimum wage is currently set at $8.00, and worker’s are entitled to be paid at this higher amount.

Even with the higher minimum wage, studies reveal that the 20% of American adults who earn $10.65/hour or less, even at 40 hours a week, this amounts to less than $22,314 the poverty level for a family of four.

ZipRealty is a real estate company that makes sales both statewide and nationally on the Internet, while relying on on-line employees to respond to questions and close on the deals. A stated by the California Labor Commissioner “In times like these, enforcement of the minimum wage is critical to maintaining a floor that allows workers to survive.”

Added the director of the state Department of Industrial Relations, “This case is a symptom of growing problems in the recession-wracked labor market.” Violations of minimum labor standards are now occurring in a wide variety of occupations.”

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One of the more common wage errors employers make is failing to pay their employees minimum wage. Sometimes, employers intentionally avoid paying minimum wage. Other times, they make errors and mistakenly fail to pay workers all the wages they are entitled to. Either way, the error may be a violation of state or federal minimum wage law.

Ensuring workers are paid minimum wage is significant and important. Not only should workers be paid what they are entitled to, but paying an adequate wage also helps the local economy. Minimum wage workers spend their money primarily on necessities, which then puts money back into their community.

Failure to pay enough wages is such a common problem that recently even the State of Florida was cited for violating its own constitution for failing to raise the minimum wage from $7.25 to $7.31 an hour. According to the lawsuit, Florida failed to pay the higher wage due to bad accounting. Florida is one of a few states that adjusts its wage based on the cost of living and did not increase the minimum wage this year as it should.

Continue reading "State of Florida Violates Federal Law By Not Raising Minimum Wage" »

Two waiters at a Hard Rock Café in Florida have just filed a tip pooling lawsuit against the company, claiming Hard Rock didn’t pay them minimum wage. They are seeking class-action status for the case based on the number of potential servers affected. The waiters and waitresses assert that the “tip pooling” policy at the restaurant required servers and bartenders to share their tips with kitchen staff, denying them fair wages.

Tipping practices are often confusing and may form the basis of a federal or state lawsuit.

Some common questions about tips include:

Who is a tipped employee?

“Tipped employees” are generally considered those who take home $30 or more in tips each month.

How much does my employer have to pay me in addition my tips?

Employers can pay as low as $2.13 an hour in “direct wages,” but the total wage including tip must meet the minimum wage. If the total amount you make doesn’t equal minimum wage, then your employer has to make up the difference.

Who owns my tips?

You do. Workers must be allowed to take home all of their tips – you can’t be required to share your wages except as a part of a valid “pooling” arrangement.

Continue reading "Waiters File Minimum Wage Lawsuit Against Hard Rock Cafe" »

Two significant studies issued this week conclude benefits exist from paying Americans more. First, a New York study found that “living wage” requirements on businesses that receive government subsidies do not negatively impact job and business creation, debunking notions that “living wage” laws hurt competition and local economies. The study looked at 15 states across the country that had living wage laws tied to subsidies. Research concluded that the cities that had “living wages” tied to subsidies had the same level of business growth as those cities without such laws. Further, the results revealed that these laws do not harm low-wage workers.

Similarly, a new study published in the November issue of the journal The Review of Economics and Statistics concluded that increasing the minimum wage does not lead to the short- or long-term loss of low-paying jobs. As noted by a Harvard University professor, “this is one of the best and most convincing minimum wage papers in recent years.” The study’s authors noted that an entire generation of previous minimum wage studies that found negative effects of jobs were fundamentally flawed.

Increasing the minimum wage has significant benefits such as stimulating the economy by putting more money in the pockets of those most likely to spend it on necessities.

Continue reading "Minimum Wage Laws Help Local Economies " »

At least 50 cities have declared November 18th a “Day Against Wage Theft” as part of a national effort to draw attention to the impact of wage theft on communities throughout the country.

As stated in a recent report by the Research Institute for Social and Economic Policy at Florida International University:

“Wage theft is when workers are paid below the minimum wage, not paid for overtime, forced to work off the clock, have their time cards altered, are misclassified as independent contractors, or are simply not paid a wage for work performed.”

The Fair Labor Standards Act (FLSA), is intended to protect against “wage theft” and is applicable to virtually all employers. The FLSA requires that workers be paid minimum wage and unless exempt, compensated for overtime at a rate of one and one-half times their regular rate of pay. Despite such provisions, many employers violate the FLSA and seek ways to avoid paying employees all the compensation they are entitled to.

Although commonly wage theft affects low-wage and immigrant workers, it can apply to nearly all professions including law, accounting, health care, food services, and social assistance industries.

Continue reading "Nov. 18th A “Day Against Wage Theft” In 50 Cities Across The Country" »

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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A Minnesota court recently determined that a pizza delivery driver for “Domino’s Pizza” is similarly situated with nearly 22,000 current and former delivery drivers. As a result, the Domino’s employee may bring his claim on behalf of the nearly nationwide class that Domino’s violated the Fair Labor Standards Act (FLSA) by not paying its drivers the federal minimum wage.

The current federal minimum wage is $6.55 per hour, although in a few states – unfortunately not Georgia – the minimum wage is higher.

In Luiken v. Domino’s Pizza, the court reviewed whether a compensation scheme that was based certain factors such as drivers’ fuel economy, maintenance, operating and other fixed costs but did not reimburse for actual delivery costs ended up paying drivers less than the federal minimum wage. In 2009, the delivery driver filed a suit on behalf of current and former delivery drivers from 2006 to the present for unpaid wages and liquidated damages.

Domino's argued that the drivers’ reimbursement rates varied by region and should not be allowed to proceed as a class. The court disagreed, concluding that all drivers were subject to the same nationwide policy. The court also stated that it was exercising its discretion to provide notice to all potential class members due to the large size and geographic scope affected.

Often a company may follow a policy that on its face seems fair, but in practice violates the FLSA – either by denying its workers minimum wage or all overtime compensation due. In Luiken, the policy in question met federal minimum wage standards on its face, but on closer look, the actual wages earned fell below the minimum wage requirements.

Continue reading "Dominos Pizza Delivery Drivers Similarly Situated Under The FLSADominos Pizza Delivery Drivers Similarly Situated Under The FLSA" »

Many college students look forward to the summer as an opportunity to gain experience in the work place before getting their first “real job.” One way to do this is to be hired as an unpaid intern at a company. Interns agree to forego pay for in exchange for hands-on experience. However, recent reports have detailed employers taking advantage of interns as a source of free labor.

In order to provide guidance regarding this growing problem, the Department of Labor has just issued a fact sheet detailing what constitutes an internship and when it is fair not to pay interns.

To qualify as an unpaid internship the following criteria must be met:

• The training must be similar to that received in an educational environment
• The experience is for the benefit of the intern
• The intern isn’t taking the place of regular employees
• The employer isn’t deriving an immediate benefit from the intern, and may in fact be slightly burdened
• The intern is not entitled to a job at the end of the internship
• The intern understands that he or she is not entitled to compensation

In most situations, internships at “for-profit” private sector jobs are considered “employment” and subject to the Fair Labor Standards Act (FLSA). Hence, if you work at a Georgia company as intern and each of the 6 factors are not present, you may be entitled to minimum wages and overtime. Under the FLSA, Georgia workers are entitled to $6.55/hour and overtime at a rate of one and one-half your regular rate of pay for all hours in excess of 40 hours in any workweek.

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Summer isn’t yet in full swing, but it is already hot here in Atlanta. One of the great summer jobs is lifeguarding, but it is employment that brings with it potential hazards, especially for people under the age of 18.

Lifeguards who are minors have their own classification under the Youth Employment provisions of the Fair Labor Standards Act.

The Department of Labor defines the duties of a lifeguard as rescuing swimmers in danger of drowning, monitoring activities at a swimming pool to prevent accidents, teaching water safety, and providing assistance to patrons. Lifeguards may also help to maintain order and cleanliness in the pool and pool areas, give swimming instructions, conduct or officiate at swimming meets, and administer first aid. Other ancillary duties may include checking towels in and out, and perhaps working with food.

Here are some highlights of restrictions on minors working in pool areas or water parks:

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No matter what, people have to eat. And restaurant employees will always be there to serve them.

There are over 7 million people employed in restaurants in the United States, a large percentage of whom work in fast food establishments. These jobs are often very transient, and the fact is that many fast food workers don’t realize that they have a number of rights under federal employment law.

Most large fast food restaurants are covered under the Fair Labor Standards Act. Any restaurant or fast food business with annual gross sales from one or more establishments that total at least $500,000 are subject to the FLSA.

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Because we just recently launched the Overtime Lawyer Blog, we didn’t get a chance to update you on an important FLSA development that happened last summer. On July 24, 2008, the minimum wage increased from $5.85 to $6.55 per hour.

If you are in a minimum wage job, make sure to review your paychecks closely to ensure that you are being paid at the new higher rate. And if you are receiving overtime, also make sure to check that your overtime pay is being calculated on the new higher rate. If you have been working since July and your checks were not based on the new higher rate, you are entitled to be made whole for all work weeks in which you didn’t receive the higher minimum wage or the correct amount of overtime pay.

And if you are an employed in the State of Georgia, even though the Georgia minimum wage is lower than the federal minimum wage (it is currently $5.15 per hour), you’re still entitled to the higher federal minimum wage—don’t let an unscrupulous or ill-advised Georgia employer convince you that it only needs to pay you at the lower Georgia rate.

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