Overtime Lawyer Blog

In 2011 nearly 7 out of 10 employment lawsuits arose out of a wage and hour dispute, making overtime and wage issues one of the fastest growing areas of employment law.

A key dispute in wage and hour claims deals with a worker’s classification – whether an individual is considered an independent contractor and if an employee if he or she is exempt v. non-exempt.

In most cases, if an individual is an independent contractor, he or she is not entitled to overtime compensation. Under Federal labor law, the Fair Labor Standards Act (FLSA) – all workers are entitled to minimum wage and all non-exempt employees are entitled to overtime at a rate of one and one-half their hourly rate for every hour worked over 40 in a workweek. As a result, employers may avoid paying overtime to those workers designated as “independent contractors” or “exempt.” Unfortunately, whether intentionally or inadvertently, workers may be unfairly denied all the compensation they are entitled to as the result of a misclassification.

If you have questions concerning your classification, and whether you should be receiving more pay, including overtime wages, it is important to speak with an experienced Georgia wage and hour attorney. Questions concerning classification may be complex, and a knowledgeable overtime attorney can help provide you guidance concerning your next steps.

Continue reading "Number Of Wage And Hour Claims Increasing " »

The federal minimum wage and overtime law – the Federal Labor Standards Act (FLSA) – protects all employees regardless of their immigration status. This means that all workers are entitled to minimum wage and non-exempt employees must receive overtime compensation for hours worked in excess of 40 in any workweek. A recent case determined that asking to see workers’ social security numbers and tax returns after being sued for unpaid overtime and minimum wage violations was out of bounds.

If you believe you have not been paid the wages you are entitled to, because you are not receiving minimum wage, overtime pay or have suffered any other wage violation, it is important to consult with a knowledgeable Atlanta overtime pay attorney who can advise you of your rights and fight to ensure you receive all the pay you are due.

In Uto et al. v. Job Site Services, Inc. et al, former employees sued their former employer – Job Site Services, Inc., along with the owner of the company for failing to pay minimum wage and required overtime. In response, the company requested to see copies of the employees’ tax returns and their SSNs. A federal trial court determined that this request was improper because it created the danger of intimidating workers and might make workers scared of pursuing their rights and obtaining the pay they are entitled to. Checking on social security numbers and tax returns is irrelevant – all workers are entitled to minimum wage and overtime pay where they are non-exempt.

Continue reading "Federal Court Determines Workers’ Social Security Numbers Are Not Relevant When Filing Wage Violation Lawsuit" »

The California Supreme Court has just issued its decision in Harris v. Superior Court, an overtime pay case that addresses whether certain employees are exempt v. non-exempt under California’s Wage Order, which is similar the Fair Labor Standards Act (“FLSA”). The FLSA provides that all employees who are not exempt from the FLSA 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 work week.

Whether an employee is exempt or not may be a complex determination and can have a potentially significant impact on an individual’s take home pay. If you have questions concerning whether you are entitled to overtime pay under the FLSA, it is important to consult an experienced Georgia overtime pay attorney.

In Harris, the California Supreme Court reviewed the “administrative exemption” to determine whether a group of insurance adjusters were exempt or not exempt. The court of appeal held that employees were only considered exempt where work is performed “at the level of making company policy.” Work that “merely carries out the particular day-to-day operations of the business is production, not administrative work.” Based on this definition, the administrative exemption was narrowly applied.

Continue reading " Harris v. Superior Court Reviews Administrative Exemption" »

Earlier this month President Obama announced that home-care workers will now be eligible to receive overtime pay and minimum wage. These protections guaranteed by the federal Fair Labor Standards Act have previously not been available to workers who provide valuable care-giving services in the home. The minimum wage and overtime protections will now extend to nearly 2 million in home employees.

As stated by President Obama, “The nearly 2 million in-home workers across the country should not have to wait a moment longer for a fair wage. They work hard and play by the rules and they should see that work and responsibility rewarded.”

This announcement comes as part of Obama’s “We Can’t Wait” campaign that seeks to implement several measures aimed at boosting economic growth without needing congressional approval. The debate concerning overtime pay for in-home workers has lasted several decades, beginning in 1974 when the workers were first declared exempt.

Whether a worker is considered exempt vs. non-exempt is a critical overtime pay consideration and can mean the difference in hundreds – even thousands – of dollars in compensation over the course of a year. Those individuals considered “exempt” under the FLSA are not entitled to overtime pay no matter how many hours worked in a week or month. On the other hand, non-exempt workers are entitled to receive overtime pay at a rate of one and one-half their regular rate of pay for every hour more than 40 worked in any workweek. If you have questions concerning whether you are exempt or not exempt, an experienced Atlanta wage and hour attorney can help answer your overtime compensation questions.

Continue reading "Home Health Care Workers To Receive Overtime Pay" »

Earlier this week the 9th Circuit Court of Appeals revived the Oracle overtime lawsuit, ruling in favor of a group of Oracle employees and finding that the company may be liable for unpaid wages. At issue, whether Oracle must pay out-of-state computer trainers for overtime work performed in California.

In Sullivan et al v. Oracle Corp., a group of employees filed a class-action overtime lawsuit based on alleged overtime pay violations. The workers, Donald Sullivan, Deanna Evich and Richard Burkow, were hired to teach customers how to use Oracle’s products. The teachers lived in Arizona and Colorado but performed work in California. Although they put in overtime hours, the employees were not paid overtime compensation.

The federal Fair Labor Standards Act (FLSA) provides that all non-exempt workers are entitled to be paid overtime wages for all hours worked in excess of 40 hours in one workweek. Typically, workers are paid at one and one-half times their regular rate of pay. Similarly, under California overtime law employees entitled to receive overtime pay for working more than 40 hours in a week or more than 8 hours in a day.

If you have questions concerning whether you are entitled to overtime compensation, or believe that you have been denied all the overtime pay you are entitled to, it is important to speak to an experienced wage and hour lawyer.

Continue reading "Oracle Overtime Lawsuit Revived" »

Senate Bill 1747, the Computer Professionals Update Act (CPU Act) has been making its way through congress and will significantly impact the amount of time computer professionals will earn in overtime. The CPU amends the Fair Labor Standards Act by expanding the definition of who is an employee in the computer or IT field. It also broadens the duties included under the exemption. If the CPU Act passes, many computer professionals who previously earned overtime will no longer be able to receive overtime compensation.

If you have any questions about the CPU Act or whether you are entitled to overtime pay, it is important to speak to an Atlanta wage and hour attorney. Whether you are exempt or non-exempt can significantly affect your take home pay.

The CPU Act proposes adding new language that exempts employees from earning overtime who work on databases, computer networks, information security and in other IT positions. This means that many more workers in the computer field will be salaried and no longer “hourly.” Because salaried employees are no longer entitled to receive overtime pay, this amendment may result in a significant number of workers receiving less money.

Continue reading "Computer Professionals Update (CPU) Act Expanding Computer Professionals Exemption Introduced In Senate" »

With the year-end approaching and the holiday season upon us, many workers wonder about holiday pay and overtime pay, and what compensation they are entitled to under state and federal laws.

One of the first questions is to consider is whether you are exempt or non-exempt. Exempt employees are generally those that make a certain amount of money per week and perform certain types of “white collar” work. Non-exempt workers are typically hourly workers. If you have questions concerning whether you are exempt v. non-exempt, an experienced Georgia overtime attorney can help answer your wage and hour questions.

If you are a non-exempt employee, you may be entitled to holiday pay and overtime pay. Although the Fair Labor Standards Act (FLSA) doesn’t require payment for time off – you may be entitled to pay for these days based on an employment agreement.

If you do work holidays and are considered non-exempt, this may be a great way to earn extra money in holiday and overtime pay. In some situations, you may be entitled to receive holiday pay. For example many jobs pay double-time to employees required to work on a holiday. Holiday pay is different than overtime – you are entitled to receive holiday pay for all non-overtime hours worked on a holiday. If you work overtime on a holiday, then you may also be entitled to overtime pay. Overtime pay is calculated at one and one-half times your regular rate of pay for every hour worked in excess of 40 hours in a workweek.

Continue reading "Am I Entitled To Holiday Pay?" »

News reports that Huddle House franchises in Georgia and throughout the United States were found in violation of the Fair Labor Standards Act and were required to pay significant back wages. Sources indicate that the U.S. Department of Labor’s Wage and Hour division determined that the restaurants had “significant” violations of labor laws in Georgia, Missouri and West Virginia. Huddle House is now required to pay minimum and overtime back wages to current and former employees, as well as civil penalties.

Federal overtime and wage and hour law pursuant to the FLSA provides that employees must earn minimum wage and that employees who are not exempt must be paid overtime at a rate of one and one-half their regular rate of pay for all hours worked in excess of 40 hours in any workweek. Even though this sounds straightforward, many employers either inadvertently or deliberately fail to pay employees the wages they are due. As a result unpaid overtime is one of the greatest sources of employee complaints. If you believe your employer has failed to pay you the minimum wages or overtime you are entitled to, an experienced wage and hour lawyer can provide you critical advice concerning your next steps.

Here, the alleged violations included the failure of Huddle House to meet the federal minimum wage. Employees were not paid minimum wage for several different reasons including:

• For tipped employees, wages plus tips earned for all hours worked amounted to less that $7.25/hour;

• Tipped employees were required to share tips with non-tipped employees, lowering the wages to less than minimum wage; and

• Some non-tipped employees such as cooks were paid at a rate lower than minimum wage.

Continue reading "Georgia Franchise Ordered To Pay Back Wages" »

Determining whether a worker is an independent contractor, an employee or an employee who is “exempt” can be a complex determination – and one that can make a significant impact on the amount a worker makes in overtime pay. Under the Fair Labor Standards Act (FLSA) employees who are not exempt must be paid overtime wages at a rate of one and one-half their regular rate of pay for all hours worked in excess of 40 hours in a workweek. However, if you are an independent contractor or are considered “exempt” your employer isn’t required to pay overtime compensation.

To determine whether a worker is an independent contractor, it is important to look at the entire relationship and evaluate the degree or extent of an employers right to direct and control the worker. The more control and employer has over a worker, the more likely that worker is to be considered an employee. Likewise, whether an employee is exempt is not always straightforward and several factors must be evaluated. Generally, if you make more than a certain amount of money per week and if you perform a certain type of “white collar” work, then you are exempt from overtime laws and your employer isn’t required by law to pay you overtime, no matter how many hours worked.

Although employers may unintentionally “misclassify” workers and fail to pay them the wages due, other times employers may willfully place employees in the wrong category. According to one report, the economic slowdown has “exacerbated worker misclassification” in order to circumvent fair labor standards, health and safety protections, and unemployment and workers’ compensation benefits. Either way, workers may be deprived all of the wages they are entitled to.

Continue reading "Violations Of Overtime Laws On The Rise" »

A recent case out of New York determined that where the president and CEO of a popular grocery chain failed to pay employees the back wages they were due, he was personally liable for millions of dollars in unpaid overtime compensation.

In Torres v. Gristede’s Operating Corp., mid-level managers at a chain of New York area grocery stores were misclassified as “exempt” under the Fair Labor Standards Act (FLSA) and were denied overtime for several years. The FLSA provides that all non-exempt employees are entitled to overtime pay in the amount of one and one-half times your hourly rate of pay for all hours worked in excess of 40 in any workweek. Although this sounds like a simple rule, one of the most common violations of federal wage and hour law is employers intentionally or inadvertently misclassifying workers as exempt. A knowledgeable overtime compensation attorney can provide crucial advice concerning whether you have been properly classified.

Here, a court determined that the managers were not exempt as previously classified and were entitled to back wages. However the CEO failed to pay the workers the amount due pursuant to the settlement agreement, claiming that he wasn’t the employer. The New York court rejected the CEO’s argument, noting that both federal and state law define “employer” as including “any person acting directly or indirectly in the interest of an employer in relation to any employee.” Further, because the CEO had control over opening and closing stores, as well as the power to hire and fire, he was considered an employer – despite the fact that he delegated these duties to others.

Continue reading "President And CEO Personally Liable For Wage And Hour Violations In Torres v. Gristede’s Operating Corp." »

The federal Fair Labor Standards Act sounds fairly straightforward. Pursuant to its rules, just about every employee in the United States who works for a wage is entitled to minimum wage and if they are not exempt, overtime compensation. Overtime is to be paid at a rate of one and one-half times your hourly rate of pay for all hours worked in excess of 40 hours in a workweek. However, wage and hour laws are far from straightforward, and employers often violate these provisions when they classify those who work for them – employee or independent contractors, exempt or non-exempt.

In a recent back wages case out of Ohio, a group of employees sued Cascom, Inc., after being denied overtime pay because they were misclassified as independent contractors. Cascom provides residential cable television, Internet and telephone installation services. The workers are seeking to recover more than $1.6 million in back wages and damages. The overtime lawsuit was filed by the Labor Department after an investigation by the local Wage and Hour Division determined that the company was violating the FLSA.

Although no one factor determines if a worker is an employee or an independent contractor, one of the most significant factors is whether the person for whom services are performed has control or the right to control the worker both as to the work to be done and the manner and means in which it is performed. In most situations, if the person you are working for has control over your work, then you are considered an employee.

As stated by Secretary of Labor Hilda L. Solis, “The misclassification of employees as independent contractors is an alarming trend. The practice is a serious threat to both workers, who are entitled to good and safe jobs, and to employers who obey the law and are undercut when others use illegal practices.”

Continue reading "Misclassification As Independent Contractor May Be A Violation Of The Fair Labor Standards Act" »

News reports that Tyson Food Inc. has agreed to settle a wage and hour lawsuit for $32 million. The settlement is in response to a complaint filed by workers that Tyson failed to adequately compensated the employees for time spent “donning and doffing” personal protective equipment (PPE). As part of the wage and hour settlement, Tyson has agreed to pay about 17,000 current and former U.S. employees an average of $1000/each. This represents pay for an additional eight minutes each workday needed to put on and take off clothing and equipment.

The federal Fair Labor Standards Act (FLSA) provides that workers are entitled to be compensated for all hours worked, including overtime for all employees who are not exempt under the FLSA. Overtime wages are calculated and one and one-half times a worker’s regular rate of pay. Several donning and doffing lawsuits have been filed across the country, seeking back wages and damages against companies that have failed to pay employees for the time spent donning and doffing safety equipment.

In 2005, the United States ruled that employers are required to pay employees for the time it takes to walk to and from a production line, after putting on and before taking off required safety equipment, as well as the time spent waiting to take off PPE. A failure to compensate employees for this time may be considered a violation of the FLSA.

Continue reading "Tyson Pays $32 Million To Settle Lawsuit For Time Spent “Donning And Doffing” Personal Protective Equipment " »

Hundreds of Groupon employees have recently filed an overtime pay lawsuit against Groupon, alleging it violated the Fair Labor Standards Act by failing to pay overtime compensation. The lawsuit seeks back wages and punitive damages.

Under federal wage and hour law, all employees who are not exempt must receive overtime pay at a rate of one and one-half their regular rate of pay for all hours worked in excess of 40 hours in any workweek. Although this sounds like a simple rule, it is often confusing to employees and employers alike, with overtime pay violations a leading cause of employment litigation. If you have questions concerning your pay – and whether your employer is providing you all the compensation you are entitled to – it’s important to consult with an experienced wage and hour law firm.

According to the lawsuit, Groupon failed to pay overtime, violated wage laws and didn’t pay workers enough. At issue is the compensation of sales reps who did not receive overtime pay from the time the company was founded in 2008 until last spring when the problem was discovered. Employees were told they would receive back wages to correct the oversight, but have not been compensated. The lawsuit may turn into a class-action.

Continue reading "Groupon Employees File Lawsuit For Overtime Pay" »

Recently the Department of Labor announced that it would be investigating homebuilders to see if they are paying workers the overtime pay and minimum wage they deserve. The move is part of a growing national concern that workers in many industries are not receiving sufficient pay.

The Fair Labor Standards Act provides that employees must earned minimum wages (typically $7.25/hour) and that all employees who are not exempt from the FLSA be paid at a rate of one and one half their regular rate of pay for all hours worked in excess of 40 hours in any work week. Despite this simple sounding rule, overtime laws are incredibly complex and are the source of much employment litigation.

Members of the trade group Builders of America have recently received letters asking for detailed payroll information. How construction workers are paid can create confusion since many times contractors are not paid directly but through subcontractors. As with any type of work however, it is critical you are paid what you deserve.

One of the most important factors in determining whether you are entitled to overtime pay for your work is if you are exempt. Exemptions provide that if you make more than a certain amount per week and perform a certain type of work, then you are not entitled to overtime pay, no matter how many hours you work. However, if you are non-exempt, then your employer must pay you time and a half for every hour worked more than 40 in any workweek.

Continue reading "Department Of Labor Questions Homebuilder Minimum Wage And Overtime Pay" »

According to Department of Labor (DOL) Secretary Hilda Solis, the Obama administration is cracking down on violations of minimum wage and overtime laws under the federal Fair Labor Standards Act (FLSA). In order to assist employees, the DOL is supporting a proposal that would require employers to provide workers more information concerning how their pay is calculated.

It is important to speak to an experienced wage and hour attorney if you have questions concerning your compensation or if believe you have been denied the minimum wage or overtime pay you are entitled to.

The FLSA sets forth minimum wage guidelines that affect nearly all employees, as well as overtime requirements. Under 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. Although this is a simple sounding rule, it is the source of many employee complaints and lawsuits.

Under the new proposal, companies would be required to provide employee a report detailing how their pay and hours and determines in an effort to ensure companies compensate workers for overtime. Secretary Solis explained, “The idea is promoting more transparency so people can know how salaries are being calculated, [w]age theft occurs and it’s to make accountable businesses not playing by the rules.”

Continue reading "Government Cracking Down On Overtime and Minimum Wage Violations" »

In a precedent setting wage and hour case, the U.S. Court of Appeals for the 2d District determined that New York City police department sergeants were entitled to overtime pay. In Edward Mullins et al v. City of New York the court evaluated whether the sergeants had been misclassified as “exempt” by the department in violation of the Fair Labor Standards Act (FLSA).

Placing employees in the proper employment category is incredibly significant, and is the source of many employer pay violations. An experienced FLSA attorney may be able to review your classification and advise you regarding whether you are entitled to overtime pay. The FLSA provides that all employees who are not exempt must be paid overtime at a rate of one and one-half their regular rate of pay for all hours worked in excess of 40 in any workweek. Workers who are exempt are not entitled to overtime, regardless of the number of hours worked. Exemptions apply to people who make a certain amount of money per week and perform certain types of work.

Here, the police sergeants were denied overtime pay pursuant to the “executive exemption,” which generally provides that if your duties are primarily management related, you are not entitled to overtime.

Subsequently the U.S. Department of Labor issued a revised interpretation of an FLSA exemption statute providing that employees with first-responder responsibilities - such as police officers and firefighters - were entitled to overtime pay.

As a result, the 2d Circuit Court of Appeals determined that the police sergeants were misclassified as exempt stating, “[W]hile directing operations at crime, fire or accident scenes’ appears, at first blush, to be a type of management that sergeants undertake, when their supervisory activities are viewed within the context of the first responder regulation as interpreted by the Secretary, it becomes apparent that, because these activities form part of sergeants’ primary field law enforcement duties, such supervision is not to be deemed ‘management.”

Based on this ruling, the police sergeants may be entitled to back pay dating back to April 2001.

Continue reading "Appeals Court Determines Police Sergeants And First-Responders Entitled To Overtime Pay in Edward Mullins et al v. City of New York" »

Federal law sets forth some basic guidelines concerning minimum wage and overtime pay. Specifically, the Fair Labor Standards Act (FLSA) provides two key provisions that impact just about every employee who works for a wage. First, the FLSA requires that workers be paid minimum wage, currently $7.25 hour. Additionally federal law requires employers pay all non-exempt workers at a rate of one and one-half their regular rate of pay for all hours worked in excess of 40 hours in any workweek.

These simple sounding rules lead to significant problems and confusion – especially when employers try to deny employees all the compensation they are entitled to by misclassifying non- exempt employees as exempt.

In a recent case out of Texas, American Airlines Federal Credit Union agreed to pay tellers, loan officers and customer service representatives over $80,000 after an investigation determined that the Credit Union violated the FLSA’s overtime provisions. Reports indicate that the credit union improperly classified its salaried employees as exempt, paying them “straight-time” wages rather than time and a half as required by the FLSA. The credit union also failed to maintain accurate records.

Determining whether you are exempt can be confusing. Exemptions are rules stating that if you make more than a certain amount of money or do a certain type of “white collar” work, your employer doesn’t need to pay you time and a half no matter how many hours you work in a week. If the exemptions don’t apply to you, then you are entitled to time and a half for every hour you work more than 40 in any workweek. Whether you are exempt is determined by the nature of work you do – rather than the title or label of your job.

Continue reading "Misclassifying Employees As Exempt Violates Federal Law" »

A recent report indicates that thousands – nearly 8000 – of employees are entitled to back wages as the result of the failure of a Texas employer to pay its workers the total amount of wages due. The company Kinder Morgan, Inc., and Kinder Morgan Energy Partners, Inc. one of the nation’s largest pipeline transportation and energy companies in North America, has agreed to pay $830,422 in back wages to past and current employees in order to resolve a pending lawsuit.

A lawsuit was filed against Kinder Morgan after an investigation revealed systemic violations of federal law regarding wage and hour payment practices. Under the Fair Labor Standards Act (FLSA), all employees who are not exempt from the FLSA are entitled to overtime pay and 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. This simple sounding rule is the grounds for many lawsuits across the country. In some instances, employers erroneously and sometimes intentionally, simply fail to make the correct calculation and do not pay workers what they deserve.

Here, an investigation found violations in Arkansas, Colorado, Louisiana, North Dakota and Texas. Included in the errors - bonuses paid to employees were not included in the regular rate of pay. As a result, when overtime compensation was calculated, employees received the wrong amount. Another common error made – employees were not paid for pre-shift meetings (which count as hours worked) and employee’s hours were rounded to benefit the company.

Continue reading "Back Wages Due To Thousands Of Pipeline Employees" »

Generally, federal law provides that non-exempt employees are entitled to minimum wage and overtime pay for hours worked beyond 40 in a work week. However, in 1974 when Congress added domestic employees to those covered by the FLSA, it specifically exempted people who provide “companionship services.” The Department of Labor now seeks to review whether this should be changed.

Home health care workers comprise about 1.8 million workers – trained professionals often paid by Medicaid who don’t receive overtime. Currently, bills have been introduced in both the Senate and House to extend the FLSA to cover home health care workers and the DOL has announced that it will reexamine the companionship exemption. This process will begin with a comment period where everyone can present an opinion – pro or con. The DOL will then make a decision whether to change the exemption or not.

Interested parties can either make comments in person or call in.

Hopefully those interested in ensuring home-health care workers obtain the compensation they are entitled to will find a way to comment and influence the DOL. A recent article in the New York Times noted that “home care workers struggle too. Theirs is among the fastest-growing lowest-paid jobs in America…These need to be middle-class job.”

Continue reading "Labor Department Seeks To Get Fair Wages For Home Care Workers" »

In a California case that may have widespread impact, the California Supreme Court has just determined that out-of-state workers must be paid for overtime work performed in California. In Sullivan et al v. Oracle Corp., the Court determined that Oracle Corp. could be found liable for unpaid wages if it did not pay its out-of-state computer trainers for work performed in California pursuant to its wage and hour laws.

Similar to the federal Fair Labor Standards Act (FLSA), the California labor code requires workers to be paid overtime for work over eight hours a day or 40 hours a week. The Court reviewed whether Arizona and Colorado workers who visited the state to provide training must also receive overtime compensation.

The California Supreme Court unanimously determined they must be paid overtime, with Justice Kathryn Werdegar writing, "To permit nonresidents to work in California without the protection of our overtime law would completely sacrifice, as to those employees, the state's important public policy goals of protecting health and safety and preventing the evils associated with overwork."

Continue reading "Non-Resident Employees Must Be Paid Overtime Compensation" »

Thousand of Farmers Insurance Company employees have just learned that they will be paid more than $1.5 million in overtime-back wages. The workers were never compensated for work they performed pre-shift – activities such as turning on work stations, logging into the company phone system and inserting software applications necessary to begin their call center duties.

Under the Fair Labor Standards Act (FLSA) all employees who are not exempt must be paid at a rate of one and one-half times your regular rate of pay. This generally includes any pre- and post- shift work you must perform on the job. Here, a U.S. Department of Labor investigation determined that Farmer’s Insurance had significant and systemic violations on the federal FLSA’s overtime and record-keeping provisions. These violations occurred across the country at customer-service call centers in Florida, Texas, Oregon, Michigan, Kansas and Oklahoma.

The investigation revealed that employees spent an average of 30 minutes on unrecorded and uncompensated duties – primarily pre-shift work getting ready to begin their call center duties. As the result of the investigation, the employees are now entitled to time and a half of their regular rate of pay for time worked in excess of 40 hours while performing those duties.

Continue reading "Farmers Insurance Agrees to Pay More Than $1.5 Million In Back Wages " »

Upper Crust, a gourmet pizza chain, continues to face legal problems as the result of failing to pay overtime compensation due its employees. A Department of Labor investigation revealed that more than 100 employees were entitled to back wages pursuant to the Fair Labor Standards Act (FLSA).

The same pizza chain recently came under investigation for retaliation.

The FLSA sets forth certain minimum wage and overtime standards that affect nearly all employers. Included in the FLSA are minimum wage and overtime provisions. The overtime law states that all employees who are not exempt must be paid at a rate of one and one-half times their regular rate of pay.

One of the most important issues in overtime law – and what gets most employers into trouble – is properly classifying workers and exempt or not exempt. Exemptions typically apply where you make a certain amount of money per week and perform a certain type of “white collar” work. If you are exempt, then your employer isn’t required to pay overtime, regardless of the number of hours you work. However if you’re not exempt then you must be paid time and a-half for every hour worked more than 40. If your employer fails to pay overtime, it may be a violation of the FLSA. Further – if you complain about not getting paid, your employer is prohibited from retaliating against you by taking such action as firing you or giving you worse hours.

Continue reading "Pizza Chain Fined For Violating Overtime Pay Laws And Retaliation" »

One of the oldest federal employment laws is the Fair Labor Standards Act (FLSA). The FLSA guarantees most employees minimum wage as well as overtime for non-exempt employees, typically 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.

This straightforward sounding law is often the source of much confusion and where employers fail to pay workers minimum wage or overtime compensation due, employees may have a claim for back wages.

Claims for violations of the FLSA may occur in the vast majority of jobs. In a recent case out of a New York – Schulte Roth & Zabel - a group of employees sued a law firm asserting they were denied overtime compensation over the course of several years. The employees worked as desk technicians and were given compensatory time off instead of overtime pay. However under the FLSA, except under certain circumstances, paid time off instead of overtime compensation is generally not allowed. Instead, you must be paid wages for overtime hours worked.

Although all the facts and circumstances of this particular case are unknown – the issue of overtime compensation versus paid time off is one that is common in many work situations.

Continue reading "Law Firm Employees File Suit Alleging Overtime Pay Violations" »

A Texas hospital has agreed to pay its employees several thousands of dollars in back wages for unpaid back overtime. The payment came as the result of a federal investigation into the hospital’s payroll practices that revealed employees had not been paid for overtime hours worked and for skipped meals during work hours.

The Fair Labor Standards Act (FLSA) provides that virtually all non-exempt employees are entitled to overtime compensation at a rate of one and one-half times their regular rate of pay. Although this rule sounds straightforward, it is complex and contains several exemptions. As a result, unpaid overtime claims are one of the most frequent employee complaints.

Due to the nature of their work, many cases involving hospital employees and overtime compensation have occurred across the country. Often, workers miss meals, or find their breaks cut-short or have to work longer hours than scheduled. Regardless of the reason, workers deserve to be paid for the time worked and employers may be found in violation of the FLSA if they fail to pay adequate overtime compensation.

Continue reading "Hospital Workers Entitled To Unpaid Back Overtime" »

The Department of Labor as recently launched a new timesheet application for smart phones that allows employees to keep track of how many hours they’ve worked and the amount of wages they are owed. The timesheet app keeps track of start times, end times, breaks, and lunch periods. The app can be downloaded directly from the DOL’s website. For workers without a smartphone, the DOL has a printable work hour’s calendar.

DOL secretary Hilda Solis notes, “This app will empower workers to understand and stand up for their rights when employers have denied their hard-earned pay.”

An employer’s failure to pay workers all of the wages and overtime they are entitled to may constitute a violation of the Fair Labor Standards Act (FLSA). If you believe you have not received all the wages you are due, you may be able to file a lawsuit to recover back pay and damages. It is important to speak to a knowledgeable Georgia employment lawyer immediately to determine you next steps.

As noted by the Director of Interfaith Workers Justice, “Wage theft is a national epidemic that robs millions of workers of billions on dollars they’ve worked for but never see…[wage theft] is “the crime wave no one talks about. It’s really all around us.”

In fact, a recent study found that 60% of nursing home workers, 100% of poultry plant workers and 90% of restaurant workers are denied fair pay at some point.

Continue reading "New Timesheet App Keeps Track Of Hours and Wages" »

Despite Federal Law requiring most employers pay employees minimum wage and overtime compensation (unless exempt), some employers willfully try to avoid doing the right thing. In a couple of cases out of Ohio this week, the Department of Labor issued a strong warning to employers that they are cracking down on those who fail to pay workers what they deserve.

In one case, BP and Marathon gas station owners failed to pay previous and current service station workers minimum wage and overtime, and failed to keep accurate time and payroll records.

In another, an animal hospital paid employees the full amount of compensation they were entitled to, including overtime, but then required the employees to return the overtime portion in cash.

Both cases resulted in substantial penalties, requiring the employers to pay damages and back wages.

Continue reading "Department of Labor Cracking Down On Employer Violations Of Overtime Pay and Minimum Wage Requirements" »

The Department of Labor has just issued its final FLSA amendments to regulations concerning the Fair Labor Standards Act, a federal employment law that sets forth several important rules concerning wages and overtime. These amendments hope to clarify questions concerning several pay issues.

One of the areas affected by the final rules concerns tip credits and tip pooling. Under the final amendment, the DOL makes it clear that employees own their tips and an employer may not take or divert the tips for any use, other than for a valid tip pool. An employee still owns the tips he or she receives even where an employer pays full minimum wage.

Further, if an employer plans to rely on a tip credit to as portion of wages, the employer is required to “inform” it employees of its intent to do so, and also must inform employees concerning:

• The amount of direct cash wages an employer is paying an employee;
• The amount of tips that will be credited toward minimum wage;
• That an employee must retain all tips where he or she is in a valid tip pooling arrangement among employees who regularly receive tips;
• The required tip pool contribution; and
• Any additional amount an employer is using as a credit against tips received.

Continue reading "FLSA Issues Final Rules Affecting Tipped Workers " »

One of the most common – and costly – mistakes employers makes is misclassifying employees for payroll purposes. This may mean labeling you an “independent contractor” when you are really an “employee” or considering you “exempt” under the FLSA when you are not. When workers are misclassified they may miss out on a significant amount of pay by not receiving all of the overtime pay they are entitled to.

Many times, a misclassification occurs due to simple employer error – determining the right classification may be confusing. Other times, employer intentionally misclassifies workers in order to save significant amounts of money in overtime wages.

Recently, the Department of Labor (DOL) investigated overtime claims against Levi Strauss & Co.. After a two-year investigation, the DOL determined the jeans maker had misclassified several groups of workers, including assistant store managers, as exempt from overtime. The misclassified workers were required to work significant amounts of overtime including late-night closings, early-morning openings and during staffing shortages, all without pay. As a result of the investigation, 596 workers will receive $1,011,413 in back wages.

Continue reading "Levi’s Jeans Manufacturer To Pay $1 Million In Overtime" »

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.

Continue reading "Workers Who Make Oral Complaints Protected From Retaliation Under The FLSA" »

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.”

Continue reading "Staffing Agency May Be Required To Pay Overtime" »

Many employees wonder, “If I’m denied overtime, how long do I have to file a lawsuit?”

The general rule regarding the amount of time you have to file a lawsuit under the FLSA, which protects your right to minimum wages and overtime pay, is that you have 2 years to file a suit for back wages, or 3 years where the violation is considered “willful.”

If you are considering filing a lawsuit, an important rule to remember is that a violation of federal wage and overtime law occurs each time you receive a new paycheck that does not include the pay you deserve.

In Figueroa v. District of Columbia Metropolitan Police Department, the D.C. Circuit Court of Appeals relied on this rule to find that a group of police officers could file a lawsuit for overtime even though the decision denying them overtime pay took place more than 3 years before the lawsuit was filed. The court explained, [b]ecause each violation gives rise to a new cause of action, each failure to pay overtime begins a new statute of limitations period as to that particular event.”

Continue reading "Overtime Pay Violations Occur Each Time You Receive A Paycheck Without The Pay You Deserve" »

One of the nation’s largest managed care providers - UnitedHealthcare – has agreed to pay $1M in back wages to workers as the result of claims that they denied nearly 500 workers overtime pay.

A Department of Labor investigation revealed that UnitedHealthCare was misclassifying workers, labeling some employees as “exempt” under federal law and denying them overtime pay.

Misclassification of your employment status is a very common problem among employers, affecting both small companies and large corporations.

Under Federal Law, non-exempt employees are entitled to overtime pay at a rate of one and one-half times their regular rate of pay for all hours worked in excess of 40 in a work-week. Determining whether a worker is exempt can be very confusing and frequently leads to claims of under-payment of wages.

Numerous tests exist to determine whether an employee is exempt, but generally if you make more than a certain amount of money in a week and perform certain “white-collar” work you may be exempt and not entitled to overtime, regardless of the number of hours you work in a week.

Continue reading "UnitedHealth To Pay $1M In Back Wages" »

Dick’s Sporting Goods has agreed to pay current and former employees $15 million to settle a federal wage and hour lawsuit.

Under the Fair Labor Standards Act (FLSA), one of the oldest federal employment laws, most workers are entitled to minimum wage, currently $7.25/hour in most states, and overtime. The overtime laws provide that all employees who are not exempt from the FLSA 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.

If you believe you have been required to work overtime and have not been overtime compensation, contact an experienced wage and hour lawyer to discuss your options.

The class action lawsuit was the result of alleged pay practices at Dick’s that violated overtime laws.

The alleged violations included:

• Requiring employees to work through their breaks;
• Interrupting employees’ breaks without paying them for additional time worked;
• Requiring employees to work more than 40 hours in a week without paying overtime; and
• Supervisors permitting workers to work more than 40 hours in a week, then requiring them take time off the following week.

The settlement won’t be final until approved by federal court at an upcoming hearing.

Continue reading "Dick’s Sporting Goods Settles Wage And Hour Violation Case For $15 Million " »

Truck drivers around the country will soon be receiving money in back wages. Cemex Inc. just agreed to a settlement with the Department of Labor (DOL) for $1.5 million. According to a lawsuit that covered over 1700 drivers in 8 states including Georgia, California, Arizona, North Carolina, South Carolina, New Mexico, Texas and Florida, the corporation violated Federal Labor Laws requiring them to pay their drivers overtime. The drivers will receive an average of $888/person.

Many of the Cemex drivers were paid per load delivered, receiving the same amount of pay regardless of number of hours worked. By law, if the truck drivers worked more than 40 per week in making those deliveries, they are entitled to overtime pay.

For two years, Cemex failed to pay the drivers for the extra hours worked. The company agreed to pay the drivers back wages as part of the settlement, but did not admit to doing anything wrong.

Continue reading "Cement Company Required To Pay $1.5 Million In Back Wages" »

A new law went into effect on Monday in New York – The Domestic Workers Bill of Rights. Similar to the Fair Labor Standards Act (FLSA) the Bill of Rights will mandate that those who employ domestic workers full-time provide eight-hour days, minimum wage and paid overtime, along with 24 consecutive hours for rest each week, paid sick days, and paid annual vacation days.

Under the FLSA, nearly all employers are required to pay minimum wage and overtime compensation. The FLSA governs individual employees whose work affects interstate commerce, or work in a business involved in interstate commerce. This definition has been interpreted broadly, and includes virtually all employers. However, households that hire domestic workers have typically not been covered by the FLSA. This is slowly changing.

The New York law is the first state to enact a law governing domestic workers. A few communities across the country have similar provisions, recognizing that domestic workers are often underpaid, not paid overtime, and “expected to be on call to serve the needs of their employers’ families regardless of the needs of their own families.”

Continue reading "New Law Provides Domestic Workers Reason To Give Thanks" »

A Los Angeles County jury awarded a former Los Angeles police officer – Richard Romney - nearly $4 million after he was unlawfully terminated by the LAPD in retaliation for testifying against the Department in a labor dispute.

At issue – whether the LAPD violated the Fair Labor Standards Act (“FLSA”) by failing to compensate police officers for overtime work. Here, the police officers routinely did not take their allotted 45 minute lunch breaks, however the department had an “unwritten policy” that barred officers from requesting pay for less than an hour of work.

The FLSA guarantees that all employees who are not exempt 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. Retaliation for complaining of FLSA violations or participating in someone else’s discrimination case is strictly prohibited.

Here, Romney testified in another officer’s trial accusing the LAPD of FLSA violations, stating that if officers requested overtime compensation for increments less than an hour, they were ostracized and made to feel they were not “team players.” Within days of providing this testimony, Romney was recommended for a suspension, and then fired.

Finding the termination constituted retaliation, the jury found in favor of Romney.

Continue reading "$4 Million For FLSA Retaliation Claim" »

Senate Majority Leader Harry Reid (D-Nev.) has reintroduced the Paycheck Fairness Act, a bill first introduced by then-Senator Hillary Clinton (D-N.Y.) in January 2009. The Paycheck Fairness Act would amend portions of the Fair Labor Standards Act (FLSA).

The Act has several components, including the following:

• Employers who violate sex discrimination prohibitions would be liable in civil actions for compensatory and punitive damages;
• Employers must show that any wage discrepancy is caused by a bona fide factor other than sex, such as education, training and experience, and that this factor is job-related and a business necessity;
• Anti-retaliation provisions are incorporated into the FLSA that would protect employees who have made a complaint, filed a charge or participated in an investigation of an unfair wage complaint;
• Class actions governed by the Federal Rules of Civil Procedure for violations of the Equal Pay Act are authorized; and
• Mandated training and other outreach efforts by the Equal Employment Opportunity Commission (EEOC) and the Labor Department’s Office of Federal Contract Compliance Programs on wage discrimination issues.

The Lily Ledbetter Fair Pay Act, which passed in 2009, eliminated the time limit within which an employee must file a complaint of pay discrimination as long as he or she is still on the payroll. The Paycheck Fairness Act will “”further level the playing field” by increasing damages and protecting against retaliation.

Continue reading "Paycheck Fairness Act Reintroduced" »

Recently, a contractor for retailers such as Macy’s and Forever 21 reached a settlement with its employees for overtime compensation for “identifiable workers” and required the company pay for an independent monitor to oversee the company’s compliance with all workplace laws for one year.

Employees of Seventeen filed a lawsuit in July 2009 accusing the garment manufacturer and its owners of violating the Fair Labor Standards Act ("FLSA") by forcing workers to work 12-hour shifts, sometimes two or three shifts back-to-back, without overtime pay or breaks, six days a week. Other allegations include falsification of payroll and time records to hide the fact that employees were being underpaid.

Workers also accused Seventeen of creating hazardous and unhealthy workplace conditions, including unsanitary bathrooms lacking clean water or working plumbing. They further alleged that exits from the building were blocked or locked at night, making it impossible for night-shift worker to exit the building at night.

The FLSA was enacted specifically to protect against these abuses. The FLSA establishes minimum wage and requires overtime compensation be paid to workers who work more than 40 hours/week at a rate of 1 ½ times their standard rate of pay. Unfortunately, FLSA violations in the garment industry are all too common. The Department of Labor estimates that 50% of the registered garment contractors pay less minimum wage, nearly 2/3rds do not pay over-time and a third operate with serious health and safety violations.

With the downturn in the economy, the prevalence of “sweatshop” type conditions is increasing. Employers may try to avoid paying all compensation due, especially overtime, and pay less than minimum wage. Failure to do so may constitute a violation of the FLSA.

Continue reading "Settlement Reached In Sweatshop Suit Case For Violations Of FLSA" »

A federal judge has recently approved a $3 million settlement in a class action lawsuit brought against Olan Mills based on violations of the Fair Labor Standards Act (“FLSA”).

In the lawsuit, 18 current and former employees alleged that Olan Mills, Inc. violated the FLSA by forcing employees to work off the clock, including performing work duties before their shifts started and after they ended, as well as being required to attend meetings without compensation. Additional allegations included the failure to pay overtime, denial of time for meals, and the withholding of wages owed to employees.

Under the FLSA, all employees who are not exempt must be paid overtime benefits at a rate of one and one half times their regular rate of pay for all hours worked in excess of 40 hours in a work week. Where non-exempt employees are expected to perform work duties during non-work hours, they must be compensated. If the additional time spent working constitutes overtime, employers must pay employees at the higher overtime rate of pay.

Here, Olan Mills denied the allegations but reached a settlement agreement through a neutral mediator. Mediation often provides a more efficient and less expensive alternative to traditional litigation.

Continue reading "$3 Million Settlement In FLSA Class Action " »

A New York Supreme Court judge has rejected precedent in determining that beauty salon workers may bring a claim for retaliation based on claims they were denied overtime pay.

The Fair Labor Standards Act (“FLSA”) provides that eligible employees must be paid overtime at a rate of one and one-half their regular rate of pay. Additionally, many states have overtime laws that incorporate the FLSA and may provide substantive and procedural advantages over the FLSA.

In Ji v. Belle World Beauty, the court reviewed a provision of New York’s Labor Law incorporating the FLSA with respect to overtime. Writing for the court, Judge Emily Goodman explained based on prior case law “some form of overtime compensation is appropriate.” Further, retaliation for complaining about violations of overtime law could support a violation as well. The court concluded that the previous ruling that held “there are no provisions governing overtime in New York Labor Law” misconstrued an earlier decision.

Nearly all U.S. employers are governed by the Fair Labor Standards Act. As a result, nearly all employees who are not exempt must receive overtime compensation. Although state laws may differ, employees who fail to receive adequate overtime compensation may be able to bring a claim for a violation of the FLSA or similar state provision.

Continue reading "Retaliation Based On Claims Of Overtime Violations Allowed" »

Earlier this week, five computer-network technicians filed suit against Goldman Sachs Group Inc., claiming that they failed to receive all overtime compensation due.

At issue, whether the technicians are considered contractors or employees. Under the Fair Labor Standards Act (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. This straightforward sounding rule is incredibly complex, and is at the root of countless lawsuits.

In Bardouille v. Goldman Sachs & Co., technicians alleged that they worked more than 70 hours in a week, yet were denied overtime. More than 100 employees in New York and New Jersey were also allegedly underpaid.

Whether an individual is classified as an “employee” or “independent contractor” has significant implications for many businesses, and may substantially impact an individual’s rights to benefits and overtime compensation. Often no one specific factor conclusively answers how certain workers are categorized. Rather, courts look at a variety of factors to determine the nature of the relationship. The more evidence of an employer exercising supervision, direction and control of an individual’s work, the more likely an employer/employee relationship will be found.

Some considerations include:

• If the employer determines when, where and how services will be performed
• Whether the employer provides a facility where work is performed
• The amount of supervision provided
• Whether the employer or the worker determines the rate of pay
• The exclusivity of services
• Whether permission is required for absences
• How the worker is compensated, i.e. by salary, hourly rate of pay, or on commission

Where an employee relationship is found, workers may be entitled to substantial sums in terms of benefits and overtime compensation.

Continue reading "Technicians Sue Goldman Sachs For Overtime Pay" »

The Federal Labor Standards Act (FLSA) guarantees certain minimum wage and overtime standards applicable to virtually all U.S. employers. Not covered though – the hundreds of thousands of workers who tend to the sick and elderly in their homes.
Earlier this week, Representative Linda Sanchez (D-Calif.) introduced legislation designed to change that. The Sanchez bill seeks to extend the FLSA to cover home care workers – including certified nursing assistants and home health aides – currently exempted by the FLSA. Many point to this exclusion as creating a home care workforce that earns less and works longer hours than most other professions, placing them amongst the lowest paying jobs in the county.

If afforded protections under the FLSA, home health care workers would be entitled to a federal minimum wage of $6.55 per hour and overtime at a rate of one and one half times their regular rate of pay.

The Department of Labor also seeks to address the issue of those providing home health care aid – also called “companionship services” through new regulations, and has indicated that it will issue a proposed rule in October 2011.

As Georgia attorneys dedicated to employee’s rights, we will be following these developments closely and reporting on any changes to the FLSA in this blog.

Continue reading "Bill Introduced To Extend FLSA To Cover Home Care Wokers" »

The Fair Labor Standard Act (the FLSA) provides certain guarantees to employees such as requiring a minimum rate of pay and that eligible employees must be paid overtime at the rate of 1 ½ times their regular rate of pay.

In addition to federal law, many states have overtime laws. Often, these laws may offer greater employee protections than the FLSA, and may provide substantive and procedural advantages over the FLSA. In many cases, employees are able to choose between filing in state or federal court.

In a recent case involving California and Texas employment law, the U.S. Court of Appeals for the Ninth Circuit held that where the complained of actions arose out the nature of employment arrangement, rather than the terms of a contact, “the choice of law provision” contained in the driver’s employment agreements was not dispositive.

In Narayan v. EGL Inc., three California drivers brought a claim against a trucking company alleging that they were denied overtime pay, expense reimbursements, and meal periods required by California law. However, each of the drivers had previously signed independent contractor agreements providing that the agreements “shall be interpreted by the State of Texas.” Although the company argued that Texas law must apply, the Ninth Circuit disagreed, reasoning Texas choice of law provisions only refer to contractual issue. Because the drivers brought their claims under “a California regulatory scheme, the court determined they were entitled to have their claims interpreted pursuant to California law.

Continue reading "California Law Allows Drivers To Proceed With Overtime Claims" »

In a recent decision, Alvarado v. Corporate Cleaning Service, Inc., a federal judge for the Northern District of Illinois determined that window washers may proceed against their employer with a claim for overtime benefits under the Fair Labor Standards Act (FLSA).

The FLSA provides that all employees who are not exempt from the FLSA must be paid overtime benefits at a rate of one and one half times their regular rate of pay for all hours worked in excess of 40 hours in a work week.

In Alvarado, the window washers often worked between 60 and 70 hours per week, but never received overtime premiums. Despite the employees’ demands for payment, the employer asserted that the window washers were exempt from the FLSA because they were partially paid on a commission-based compensation system. Under the FLSA, employees who receive more than half their compensation in the form of “commissions on goods or services” are generally not entitled to overtime payment.

Determining whether a “commission-based” compensation scheme exists is not always clear-cut. Case law has found a commission-based system exists where compensation is linked to the price charged to the consumer for the good or service being sold and where compensation is “related to the value of the service performed.”

Although some evidence indicated that the window washers were paid a commission – i.e. the window-washers were paid on a point system rather than an hourly wage – additional evidence showed that the employer was inconsistent in charging customers in this manner. As a result, the federal judge denied the employer’s motion for summary judgment and allow

Continue reading "Worker’s Who Receive Commissons Not Always Exempt Under The FLSA" »

On June 16th the Labor Department’s Wage and Hour division issued a new interpretation regarding compensation for time spent changing clothes under the Fair Labor Standards Act.

Pursuant to the FLSA, Sec. 29 U.S.C. Sec. 203(o), under certain circumstances employers may exclude the time spent changing clothes from employee’s compensable time. Previous Bush-era interpretations concluded that the exclusion extended to protective clothing.

Stating that these interpretations should no longer be relied upon, the WHD administrator concluded that employers are not excused from paying employees for time spent “donning and doffing” protective equipment that is “required by law, by the employer, or the nature of the job.”

This interpretation follows several recent cases that have evaluated whether individuals – such as firefighters – are entitled to pay for time spent donning and doffing.

Emphasizing the difference between the plain meaning of the term “clothes” and the protective equipment worn by workers such as in the meat packing industry, the WHD administrator determined that compensating those who must don and doff protective clothing and equipment “adheres most closely” to the guidance provided by statutory language and legislative history.

Continue reading "Time Spent Donning And Doffing Protective Clothing Is Compensable" »

Under the Fair Labor Standards Act (the FLSA) non-exempt employees are entitled to minimum wages and overtime pay at a rate of one and one-half times their regular rate for all hours worked in excess of 40 hours in any workweek. When employers misclassify employees as “independent contractors” – mistakenly or not – employees may lose substantial amounts of overtime compensation.

In a recent case, a federal court in Indiana ruled that FedEx workers are employees of the company and not independent contractors.

Applying Illinois law, the court determined that the FedEx workers duties and actions were in furtherance of FedEx’s course of business, and hence not excluded from the legal definition of employee.

In making its determination, the court reasoned that such factors as the requirement that the drivers wear FedEx uniforms and drive trucks displaying FedEx logos, along with testimony from FedEx officials that drivers are the “centerpiece” of the workforce created an employment relationship. FedEx’s relationship with its drivers could be distinguished from other messenger delivery companies wherein the drivers were allowed to work for other delivery companies and weren’t required to wear uniforms.

FedEx drivers were also subject to other rules such as being required to pick up packages at a FedEx terminal, meet company approval, and follow a prescribed delivery list. Each one of these actions showed a connection between the worker’s action and the company. Hence, the court determined their appropriate classification was as employees and not independent contractors.

Continue reading "FedEx Workers Are “Employees” Not “Independent Contractors”" »

Many times numerous employees are exposed to certain patterns or acts of discrimination by the same company. Discrimination may occur in many different ways, such as in the way overtime is calculated, in the failure to promote or hire groups based on tests scores and imposing dress-codes or English-only laws.

Often the best and most efficient way to seek redress for the same discriminatory action across a group of employees is to file a collective action. In order to bring a collective action, the plaintiffs must demonstrate that all of the potential members were “similarly situated.”

In a recent case, University of Phoenix enrollment counselors sought to bring a class action based on overtime violations of the Fair Labor Standards Act against the University’s parent company, Apollo Group, Inc.

At campuses across the country, counselors were required to meet specific performance goals each week. The counselors were told that they would not be compensated for overtime if it took more than 40 hours to complete these tasks. In fact, plaintiffs were told they had to meet certain goals and they [the managers] didn’t care how they met them.”

In making its determination on the collective action, the U.S. District Court for the Eastern District of Pennsylvania considered whether the counselors fit the “similarly situated” criteria.

Factors considered included:
• Consistent performance requirements of employees throughout the company;
• Similar overtime practices at all locations; and
• Difficulty by employees at all campuses completing required tasks during an eight-hour workday.

Here, the court held that the evidence presented was sufficient to demonstrate that the class members experienced an injury resulting from an employment policy affecting all members in a similar fashion. As a result, conditional certification was justified, notwithstanding the existence of a company policy providing for overtime compensation.

Continue reading "Court Finds Counselors At Nationwide Campuses Are “Similarly Situated” " »

The Court of Appeals for the Fifth Circuit affirmed the lower court’s determination that a staffing company violated the Fair Labor Standards Act (FLSA) when it failed to include a per diem payment in its “regular rate of pay” calculation.

Pursuant to the FLSA, all non-exempt employees 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. “Regular rate” is defined under the act as “all remuneration for employment.” The overtime rate then become s a mathematical computation based on a factual determination.

In Gagnon v. United Technisource, Inc. an employee – a skilled craftsman – was paid $5.50 per hour plus a $12.50 per diem per hour payment by a staffing company. The typical rate of pay for his position was as much as $24 per hour.

The lower court acknowledged that in some instances per diem payments are not included in the regular rate of pay analysis. In this instance however, the court was suspicious that the payment schedule was designed to circumvent overtime laws. A skilled craftsman typically earns 3-4 times the rate of pay offered by the staffing company. The court noted that they were “troubled by the fact that the combined ‘straight time’ and ‘per diem’ hourly rates matched the prevailing wages.”

The court likened this fee arrangement to other situations where employers artificially lower an employee’s regular rate of pay as a bonus in order to avoid paying a premium for overtime work.

As a result, the lower court held it was a violation not to include the per diem payments as part of the “regular rate of pay” calculation. The 5th Circuit affirmed.

Overtime premiums can be a great source of extra income to employees. However, in order to avoid paying employees the total compensation due, some employers and companies try to alter how overtime is calculated. In most cases when an employer mischaracterizes your rate of pay, they have violated the FLSA.

Continue reading "Fifth Circuit Finds Failure To Include Per Diem Pay In “Regular Rate” Violates FLSA" »

The U.S. Court of Appeals for the 7th Circuit determined this week that where common questions predominate, individuals – in this case paramedics – may be “similarly situated” (and hence suitable for determination as a class) even though each person’s recovery must be determined separately by a subset of common questions.

Here, a group of 54 paramedics brought a collective action under the Fair Labor Standards Act (the “FLSA”) based on the City of Chicago’s miscalculation of overtime pay. The case was later certified and more than 300 paramedics consented to the action. Several types of counting errors were alleged, resulting in 10 different subclaims. Although each paramedic alleged a miscalculation of pay, different combinations of challenged practices affected the amount owed to each individual.

The District Court dismissed the collective action as being “hopelessly heterogeneous,” holding that the paramedics were not “similarly situated” because each individual’s matter raised a different combination of the 10 subclaims. The District Court also found that although paramedics were not required to pursue claims using grievance/arbitration procedures, arbitration would be more efficient way to resolve the disputes.

The 7th Circuit Court of Appeals reversed, finding that if the paramedics prove liability, recovery will be based on a mathematical formula common to all class members. As a result, it was error for the District Court to dismiss the matter.

Often an employer engages in a common type of inappropriate or adverse behavior – in this case allegedly intentionally failing to pay paramedics overtime rightfully due – that affects a large group of employees similarly. Here each employee allegedly received less pay than they were entitled to – although the specific calculation of how much may be a based on a formula. If you are part of a large group of workers who have been denied compensation, including overtime or benefits, you may be entitled to file a claim for violation of the FLSA either individually or collectively.

Continue reading "Subclaim Approach Possible In Paramedic’s FLSA Lawsuit" »

In a recent case, the 11th Circuit Court of Appeals reviewed whether a black probation officer, Welton Thomas, who was fired allegedly due to repeated violations of its overtime policy, was a victim of race bias and retaliation.

The court determined that he was not, in part because Thomas failed to satisfy the “nearly identical” standard. This standard provides that a prima facie case for race discrimination exists where an employee of a protected class can demonstrate he received less favorable treatment in a “nearly identical circumstance” than an employee from a non-protected class. Even if he had met the “nearly identical” burden, the court noted that Thomas’ repeated failure to follow the department’s overtime policy exposed it to liability under the Fair Labor Standards Act (the “FLSA”) and created a legitimate, non-discriminatory reason for termination.

Here – a worker’s actions by doing more than what was required of him cost him his job. Under the FLSA, whenever an employer requires or “suffers” the employee to work overtime house, non-exempt employees must receive over-time compensation (typically at a rate of one and one-half times your rate of pay). Employers are also permitted not to allow overtime. Well-intentioned employees who work extra hours without reporting it, may ultimately end up out of work if these hours have not been approved – even if the hours benefit the employer.

Continue reading "Working Overtime Can Cost You Your Job" »

Early this month the Supreme Court declined to hear an appeal from the 2d Circuit’s November 2009 determination that a home equity loan underwriter was entitled to overtime pay under the Fair Labor Standards Act (the “FLSA”).

Under the FLSA, employers are required to pay “non-exempt” workers overtime, typically at a rate of 1 ½ times your hourly rate for each hour over 40 worked in a work week. Alternatively, if you perform certain types of work, then you are “exempt” from overtime laws and your employer is not required to pay your overtime, regardless of how many hours you work.

In J.P. Morgan Chase & Co. v. Whalen, the 2d Circuit Court of Appeals determined that a home equity underwriter – Andrew Whalen – was entitled to overtime pay. The court’s analysis focused on the distinction between “production” and “administrative” work duties. Where an employee’s primary duties are considered “production” i.e. related to the production of goods and services, in most cases no exemptions apply and overtime must be paid. However if the duties are administrative – i.e. directly related to the management or general business operations of the company and involving the exercise of discretion or independent judgment with respect to important company business, then an employee may be considered exempt and not entitled to overtime.

In Whalen, the underwriter was required to follow a detailed “credit guide” to determine whether to approve loan. The 2d Circuit Court reasoned that while performing these duties, Whalen used little ‘independent judgment’ or discretion, rather his work fell under the category of production work - i.e. he was “directly engaged in creating the ‘goods’ – loans and other financial services- produced and sold by Chase.” As a result, he was entitled to overtime compensation. On May 3rd, the S.Ct. declined to review this ruling.

Continue reading "S.Ct. Lets Stand 2d Circuit Determination That Home Equity Loan Underwriter Is Not Exempt Under The FLSA" »

Under the Fair Labor Standards Act, independent contractors are not entitled to benefits such as minimum wages, overtime, worker’s compensation and unemployment insurance. State and federal anti-discrimination laws often do not protect them.

As a result, being classified as an independent contractor or as an employee can have significant legal and financial implications. Many employers either mistakenly or intentionally misclassify employees as independent contractors or non-employees in order to avoid paying adequate wages and overtime.

In an attempt to rectify this problem, lawmakers have recently introduced the “Employee Misclassification Prevention Act” aimed at reducing misclassification errors.

The Act includes the following provisions:

• Employers must keep accurate records of each workers’ status and clarifying that it’s a violation of the FLSA to misclassify workers;
• Increased fines for misclassification;
• Workers must be notified of their classification;
• Creation of an “employee’s rights website” containing relevant information concerning state and federal wage and hour issues;
• Workers who are discriminated/retaliated against for requesting proper classification will be protected;
• Mandating state audits of classifications along with DOL oversight; and
• Directing DOL to audit employers in industries with routinely misclassified employees.

Continue reading "Legislation Introduced To Prevent Misclassification of Workers As Independent Contractors" »

Police officers are not entitled to pay under the FLSA for time spent putting on and taking off their uniforms. According to the 9th Circuit Court of Appeals, time spent ”donning and doffing” uniforms doesn’t entitle the officers to pay if they’re not required to change at the workplace and they have the option to change at home Bamonte et al. v. City of Mesa, No. 08-16206, 2010 WL 1131492 (9th Cir. Mar. 25, 2010).

Under the FLSA, activities, which are an “integral and indispensable part” of an employee’s workday, are compensable. Here, police officers filed a claim against the City of Mesa for time spent changing into their uniforms at the police station.
In determining whether the officers were entitled to compensation, the court focused primarily on the location where the changing occurred. The court cited a Department of Labor memorandum that indicated “donning and doffing of required gear is only considered part of the work day where the job mandates that the changing takes place on the employer’s premises.”

Here, because the police officers were not required to change at the station but have the option of changing at home, the 9th circuit determined that the police officers were not entitled to compensation.

Further, the court noted the uniforms the officers were changing into were “generic protective gear” and not specific uniforms designed for the employer’s benefit.

Continue reading "Police Officers Not Entitled To Pay Under FLSA For Time Spent Changing" »