Overtime Lawyer Blog

The Fair Labor Standards Act (FLSA) sets forth overtime and wage guidelines that govern nearly every employee in the United States. Included in the FLSA are requirements that employees earn minimum wage and all employees who are not exempt 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.

Whether an employee is exempt vs. not-exempt can be a crucial factor in determining how much an employee earns and directly affects if a worker is entitled to overtime. In an attempt to clarify whether computer employees are exempt or not exempt, the Senate has recently introduced the Computer Professionals Update (CPU) Act in attempt to clarify those employees that fall into each category.

For example, in order to be considered “exempt,” currently computer employees must meet the following tests:

• The employee must make no less than $455/week
• The primary duties must consist of:

Applying systems analysis and techniques and procedures, including consultations regarding hardware, software or system specifications;
Designing and developing computer systems or programs;
Designing and developing computer programs related to machine operating systems; or
A combination of the above duties.

• An employee is not considered exempt where their primary duties involve the manufacturing or repair of computer hardware

Continue reading "Computer Professionals Update (CPU) Act Seeks To Modify Whether Computer Professional Are Exempt Or Not-Exempt" »

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.

Continue reading "Pharmaceutical Sales Reps Entitled To Overtime Compensation" »

If you’ve been fired and receive severance pay, can you still get paid for back wages?

Three judges in a Mississippi wage and hour case concluded “yes.” Why? Because severance is not the same as wages. Severance is pay given to an employee that is fired and is considered “additional pay” on top of wages. In a Mississippi case, a woman – Karen Martin - was fired from her job with PepsiAmerica and was offered a severance package with benefits. The package came with a hitch – in order to get severance pay, Martin had to agree not to sue the company based on its firing her or any other actions that occurred during her employment. Martin agreed and received the severance money.

After later finding out that Pepsi owed her back wages under Federal labor law for overtime hours, Martin sued Pepsi. Pepsi then sued back, arguing that any overtime pay Martin received should be reduced by the amount of severance they paid her. The New Orleans court disagreed, stating that severance is completely separate from wages.

Continue reading "Fired Employee Entitled To Overtime Pay" »

Last week, a California judge certified a class of nearly 3,000 Oracle employees who allege they were misclassified as exempt under California’s Labor Code – similar to the federal Fair Labor Standards Act (“FLSA”) - by denying overtime pay and failing to provide off-duty meal periods. 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.

Whether an employee is “exempt” is one of the most important issues in overtime law. Exemptions fall into three principal white-collar exemptions – executive, professional and administrative. Executive exemptions typically involve high-level managers or other individuals who manage and control an important aspect of the company’s business. Professional exemptions apply where your duties involve work that is intellectual in nature and requires “advanced knowledge” in an area of science or learning. Administrative exemptions cover those employees whose duties include the performance of office or non-manual work related to the general business operations of a company, and who’s primary duty involves the exercise of discretion and independent judgment related to company business.

At issue in the Oracle case is whether thousands of employees including technical analysts, project managers and quality assurance analysts, should be considered exempt.

Although California uses a slightly different test to determine exemptions than the FLSA, under both California law and the FLSA job title is irrelevant to the exemption determination - what matters is the specific job functions of the employees in question.

Continue reading "Class Certification Of Oracle Employees in Wage-and-Hour Suit" »

In a recent decision, the Second Circuit determined that Novartis Pharmaceutical Corps representatives were not covered by the “outside sales” exemption under the Fair Labor Standards Act and hence, were entitled to overtime pay.

Pursuant to the FLSA, 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.

One of the biggest issues to arise under the FLSA is whether the work you do is considered “exempt.” Generally, exemptions under the FLSA fall into three main categories – executive, administrative, and professional.

In Novartis, the company asserted that the representatives were covered by the administrative exemption as outside sales employees. Under the FLSA, an “outside salesman” is an employee whose primary duty is make sales or “obtaining order of contracts for services.”

Judge Amayla L. Kearse, writing for the U.S. Court of Appeals for the Second Circuit disagreed, reasoning that although a pharmaceutical representative may be “actively engaged in persuading physicians to prescribe a drug” the reps were not specifically making sales. As a result, the reps did not fit within the “outside salesman” definition and were not exempt. Judge Kearse noted that although her interpretation differed from other federal district courts’, it more closely followed the Secretary of Labor’s interpretation of this provision.

Further, Kearse noted that the skills characterized by the company as evidence of the reps’ exercise of discretion were actually developed and/or honed in Novartis training sessions. These skills were not evidence of independent thinking and judgment, but rather actions further bolstering the reps’ claims that their work was strictly controlled by the company.

Determining whether a particular job is covered by the FLSA can be confusing. As this case demonstrates, even federal courts may disagree on what job duties are considered exempt.

Continue reading "Pharmaceutical Reps Not Exempt 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.

Continue reading "Most Georgia Interns Entitled To Minimum Wages and Overtime" »

A recent opinion issued by the Department of Labor (DOL) determined that mortgage loan officers do not qualify as bona fide administrative employees exempt under section 13(a)(1) of the Fair Labor Standards Act (FLSA), 29 U.S.C. Sec. 213(a)(1). As a result, they are entitled to receive overtime pay, typically one and one half times their regular rate of pay for all hours worked over 40 hours in any workweek.

The DOL issued its opinion after reviewing whether a mortgage loan officer was “exempt” based on the 3-part test set forth by Federal Regulations. This test asks the following questions:
1) Is the employee paid more than $455 a week?
2) Is the employee’s “primary duty the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers? and
3) Does the employee’s primary duty include the exercise of discretion and independent judgment with respect to matters of significance? 29 C.F.R. Sec. 541.200.

In considering the status of mortgage loan officers, the DOL focused primarily on the second question – are mortgage loan officer’s duties are directly related to the management or general business operations of the company?

The DOL determined that a mortgage loan officer’s main job function is sales – each action that they take such as analyzing financial data, is in furtherance of making a sale. Determining whether a customer qualifies for a mortgage loan and the benefits of different types of loan products, relates to the sale of a product, for which the mortgage broker or loan officer receives a commission. These actions are not part of the internal operation of the company – they are not servicing the company itself or providing advice to the company. Rather, they are selling a product and “fall squarely on the production (non-exempt) side of the business.” Further, to the extent mortgage loan officers provide customers advice for their personal needs and not for “management of general business operation” these actions are not exempt.

Continue reading "GEORGIA MORTGAGE LOAN OFFICERS NOT EXEMPT UNDER THE FLSA" »

Just because you receive commissions doesn't necessarily mean that you don't qualify for overtime. The FLSA has carved out an exemption to overtime pay for people who receive commissions as a part of their salaries, but it is a very narrow exception. It is possible that people working in malls all across Georgia should be talking to an employment attorney about this issue.

The exemption, Section 7(i), applies to retail and service establishments, which are defined as "establishments, 75% of whose annual dollar volume of sales of goods or services (or of both) is not for resale, and is recognized as retail sales or services in the particular industry."

Continue reading "Retail Commissions and Overtime" »

Many companies in the Atlanta area now require that their employees take online training classes, or classes at outside facilities. Should the time spent taking this training be compensated? The FLSA covers this issue in general, and a recent DOL opinion letter shines an interesting light on some facts that may come up while employees are taking classes on their computers.

Generally, the FLSA says about online training that it is not compensable if the following four criteria are met:

Continue reading "Compensation for Online Training" »

One of the requirements in the FLSA to prove that an employee is under salary and not an hourly employee for the purposes of paying overtime is the concept of a “constant weekly wage,” where the employee gets a set salary for set hours worked per week. Any variance on that theme can result in the employee collecting overtime.

But there are some jobs that just don’t fit that description. There is an exception to that “constant wage” rule, but it is very narrow and very specific and needs to be in writing. It is called a “Belo Plan,” named after the Supreme Court case that allowed the exception, (Walling v. A.H. Belo Co., 316 U.S. 624 (1942)), and provides for a constant wage, even though overtime is actually worked.

Continue reading "Belo Plan Contracts" »

Atlanta is replete with people who work in the field of home health care. Home health care workers have a special set of regulations under the Fair Labor Standards Act.

For instance, a home health care worker may or may not be entitled to overtime pay, depending on the circumstances of employment.

First, the definition. A home health care worker is someone who provides home health care services for individuals who (because of age or infirmity) are unable to care for themselves. They may be employed by the household itself, or an agency, or may just freelance.

Continue reading "Classifying Home Health Care Workers" »

Most salaried employees don’t get overtime pay. But is the reverse true—does an employer have to pay full salary if the employee isn’t at work? Some deductions from pay will be proper, but some may cause an employee to lose that exempt status and qualify for overtime.

Allowable deductions to your salary, according to a July 2008 Department Of Labor fact sheet, include where an exempt employee: is absent from work for one or more full days for personal reasons other than sickness or disability; for absences of one or more full days due to sickness or disability if the deduction is made in accordance with a plan of providing compensation for salary lost due to illness; to offset amounts employees receive as jury or witness fees, or for military pay; for penalties imposed in good faith for infractions of safety rules of major significance; or for unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions. Also...

Continue reading "When Do Salaried Employees Qualify for Overtime Pay?" »

Nobody may work harder, and nobody may have more job satisfaction, than a nurse. But with all of those hours put in, do nurses generally qualify for overtime pay, or are they exempted under the FLSA?

The answer to that question may depend on what kind of nurse you are, what your duties are, what your educational background is, and how much money you are paid. A July 2008 advisory letter from the US Department of Labor lays out all of the various considerations in deciding whether or not a nurse should receive overtime.

Continue reading "Overtime for Nurses" »

Are reporters entitled to overtime pay? Will they write about it more if they are?

Even with the well- documented decline of print media, there are certainly enough reporters left on the job for this to be an ongoing issue. And reporters facing layoffs will certainly have any number of questions that could be directed to an employment attorney.

The issues are on a fine enough line that each communications media employee’s situation will need to be treated on a case-by-case basis.
In fact, if you have recently been let go by a newspaper or magazine, or are on the edge, and are looking for some legal advice, you may very well run into questions of unpaid overtime, depending on how your job can been classified.

Continue reading "Overtime for Journalists" »