Overtime Lawyer Blog

Many workers think if they are “undocumented,” then they cannot get back pay or other damages for unpaid overtime or other wage and hour violation. This is not the case. In fact, undocumented workers have the same rights as “documented” workers under the Fair Labor Standards Act (the “FLSA”). The FLSA provides all workers – regardless of citizen status – the same basic rights. These include the right to minimum wage and for non-exempt workers, overtime compensation at a rate of one and one-half times a worker’s standard rate of pay.

A recent case out of the Eleventh Circuit (which includes Georgia, Florida and Alabama) just reached the same conclusion – that a worker’s immigration status does not affect his or her right to recover back wages for unpaid overtime or other damages.

The FLSA can be confusing – if you have questions about the FLSA or are concerned that you have not been paid all the compensation you deserve, it is important to consult with a skilled Georgia wage and hour attorney right away. A knowledgeable FLSA attorney can advise you concerning your rights and help you determine your next steps.

In the recent case, Lamonica v. Safe Hurricane Shutters Inc., two undocumented aliens filed a wage and hour lawsuit seeking back pay for unpaid overtime and liquidated damages under the Fair Labor Standards Act ("FLSA"). The defendant Shutter Company argued that the workers’ illegal immigration status meant that they could not recover compensation based on a case decided over ten years ago - Hoffman Plastic Compounds Inc. v. NLRB. However, the 11th Circuit rejected this argument and instead upheld the FLSA judgment, concluding that nothing in Hoffman overruled Eleventh Circuit precedent that undocumented aliens remain "employees" who can recover damages under the FLSA.

Importantly, the court stated, “The Act unequivocally provides that any employer who violates its minimum wage or overtime provisions ‘shall be liable to the employee or employees…in the amount of their unpaid minimum wages, or their unpaid overtime compensation…and in an additional equal amount as liquidated damages’ . . .there is nothing in the FLSA that would allow us to conclude that undocumented aliens … [are] barred from recovering unpaid wages.” The 11th Circuit is just one of many federal courts that have found that immigration status does not affect your rights to compensation under the FLSA.

Continue reading "Undocumented Workers May Recover Back Wages Under The FLSA" »

This week Congress will vote on the “Working Families Flexibility Act,” sponsored by Rep. Martha Roby (R-Ala.) Touted as a family friendly provision, Act would amend the Fair Labor Standards Act (FLSA) by giving employers the option of offering workers additional time off instead of overtime pay. While on the surface this may seem like a good idea, the amendment is widely opposed by labor unions. Why? Many workers count on overtime pay to make ends meet. This provision would give your employer the ability to decide whether to give you time off instead of compensation.

If you have questions about your rights to receive overtime pay or any other wage or hour issue, it’s a good idea to consult with an experienced Atlanta wage and hour attorney right away. Violations of the FLSA and other wage and hour laws occur more often than many workers think and it’s important to ensure that you are receiving all the pay you deserve.

The FLSA covers many different areas, but provides two key provisions that apply to just about every employee who works for a wage in the United States: the minimum wage provision and the overtime provision. Currently, the overtime provision provides that all non-exempt workers who put in more than 40 hours in any work week are entitled to be paid at a rate of one and one-half times their standard rate of pay. This means if you are paid $20 an hour, and work overtime, you are entitled to be paid $30 for the extra time.

Although this sounds like a simple rule, many employers either accidentally or willfully make errors and fail to pay workers the extra compensation. Overtime pay can add up to a lot – and can play a huge part in whether a worker can make ends meet. On the flip side, employers seeking to save money often don’t like to pay overtime because it affects their bottom line.

Continue reading "Congress To Vote On Working Families Flexibility Act" »

An overtime pay case filed against the Coyote Ugly Saloon Development Corp., which owns the popular “Coyote Ugly” bar chain is heating up. The recently filed class action lawsuit alleges a number of federal labor law violations, including several violations of the Fair Labor Standards Act (FLSA). Among the claims include allegations that the corporation failed to pay its employees all the overtime they were entitled to and that it allowed illegal tip sharing.

If you have questions about the FLSA or believe you are not getting paid what you deserve, it is important to consult with a top Atlanta wage and hour attorney right away. Violations of the FLSA are more common than many employees think, and often where one worker has not been paid all the compensation he or she is entitled to, others have also been denied fair pay. In these situations, you may be able to file a special type of FLSA class action, known as a collective action, which will help you bring the maximum pressure to bear on your employer to change its ways and to pay you all the compensation you are owed.

Here – the overtime pay lawsuit raises many interest points. The allegations include the following:

• That many employees were required to work off the clock.

Under the FLSA, employees must be paid for all time worked, and for any time worked in excess of 40 hours in any work-week must be compensated at a rate of one and one-half times an employees regular rate of pay.

• That security personnel were allowed to share in the tip pool.

Federal and state laws prohibit tip-sharing with employees who are not directly involved in service to customers. Tip-sharing is generally allowed among waitpersons, counter staff, bartenders and bus persons but not with workers who don’t regularly receive tips such as dishwashers, cooks, sales staff or others in management. Sharing tips with security guards may violate this rule.

Continue reading "Retaliation After Overtime Pay Lawsuit Filed Violates FLSA" »

One of the most frequent violations of federal employment law occurs when employers fail to pay their workers all the pay they are entitled to. Although figuring out pay may seem straightforward – you are paid at a certain rate for every hour worked, and under the Fair Labor Standards Act (FLSA) non-exempt workers are entitled to pay at a rate of one and one-half times their regular rate of pay – miscalculations are frequent. Because overtime compensation may end up being a large part of your take home pay, when errors occur they may have a significant impact on your bottom line.

If you have questions about your pay or think that your employer may have failed to pay you all the compensation you are entitled to, it’s a good idea to talk to a knowledgeable Georgia wage and hour lawyer.

A recent case from Washington looked at a common scenario. The lawsuit involved a group of nurses who complained that they had to work during their breaks, and that they should have been paid overtime for that work. The Washington State Supreme Court agreed. In a unanimous decision, the court determined that hospitals must pay nurses overtime compensation when they work during their breaks.

One of the big considerations in that situation was how to classify the rest time that the nurses didn’t get to use – should the time spent working instead of resting be considered straight time or overtime? The court determined that both the missed 15-minute rest period, plus the additional time spent working should be considered “hours worked” and be paid as overtime compensation.

Continue reading "Nurses Entitled To Overtime Pay For Missed Breaks According To Washington Supreme Court" »

House republicans are set to consider legislation that may weaken your right to overtime compensation under federal law. The Fair Labor Standards Act (FLSA) is one of the oldest federal labor laws, setting forth certain minimum wage and overtime standards applicable to virtually all U.S. employers. The FLSA provides that all non-exempt employees are entitled to be paid overtime at a rate of one and one-half times their regular rate of pay for all hours worked in excess of 40 hours in any work week.

Currently overtime violations are one of the main sources of litigation in employment law, with many employers intentionally or accidentally failing to pay workers all the overtime wages they are entitled to. Because overtime compensation can make up a significant part of a worker’s take home pay – ensuring an employer follows the law and pays you what you deserve is crucial.

If you have questions about the FLSA or are concerned that you haven’t been paid all the overtime wages you are entitled to, it’s a good idea to consult with an experienced Atlanta wage and hour attorney right away.

The new legislation seeks to amend the FLSA to make it even harder to get the overtime pay you deserve. The policies under consideration – ironically labeled “family-friendly” – will likely weaken overtime pay policies. The proposed law would change the policy of requiring employers to pay workers increased wages for working long, to one where the employers have the option of giving employees more “comp time” instead of more wages.

As reported in a legislative journal, the FLSA currently requires employers to pay overtime for wage-earners who work more than 40-hours- “giving employers little control over how to compensate those workers except for managing their hours in a way that prevents excess work.” If the new legislation is passed, employers would have more control over how workers are compensated for overtime work, since they would likely have to approve taking time off under comp time.

Continue reading "Fair Labor Standards Act Protects Your Right To Overtime Compensation" »

A recent wage and hour case out of Maryland asked the crucial question – when is your supervisor also considered your “employer.” The answer to this basic question may significantly affect your ability to recover back wages and other damages under the Fair Labor Standards Act.

If you have questions about your pay, including whether your employer is paying you all the wages and overtime you deserve, it’s a good idea to consult with a knowledgeable Georgia wage and hour attorney right away.

In the recent unpaid wages case four construction workers filed an FLSA claim against their supervisor, claiming that he should be held responsible for the back wages. The supervisor’s son owned the construction company.

Under the Fair Labor Standards Act (FLSA), "any employer" who violates minimum wage or unpaid overtime compensation laws may be liable for both back wages and other damages. Just who is considered an “employer” can be very broad and has been found to include not only owners, but also supervisors, high-ranking executives, officers and directors.

Continue reading "When Is A Supervisor Also An Employer?" »

The 11th circuit (which includes Georgia) recently decided several Fair Labor Standard Act (FLSA) cases that may affect the lives of many workers, including undocumented laborers.

The FLSA is a federal law that requires employers to pay workers minimum wage and all non-exempt employees overtime pay at a rate of one and one-half their hourly rate of pay. Even though this rule sounds straight-forward, employer violations of the FLSA are common. If you have questions about the FLSA or believe that your job is not paying you all that you deserve, it’s a good idea to consult with a knowledgeable Atlanta wage and hour attorney right away.

In a recent case, Lamonica, et al. v. Safe Hurricane Shutters, Inc., Case No. 11-15743 (March 7, 2013), the court considered whether undocumented workers may file claims for back wages based on violations of the FLSA. Many people think that the FLSA doesn’t cover workers who don’t have their necessary papers. However, that’s not the case. The FLSA protects all workers. In fact, in cases addressing the FLSA and undocumented workers, courts have stated: “By its terms, the FLSA applies to ‘any individual’ employed by an employer … The Act contains no exception or exclusion for persons who are not U.S. citizens or who are in this country illegally.”

Courts throughout the country have frequently ruled that the FLSA protects all employees working in the U.S. regardless of immigration status based on the reasoning that if companies could benefit by hiring illegals and paying them lower wages, companies that didn’t hire undocumented workers would be disadvantaged.

In Lamonica, the employer – Safe Hurricane Shutters – argued that the workers shouldn’t be able to sue management for fair wages because of the two workers involved in the FLSA lawsuit applied for the job with a false Social Security numbers and both failed to report their income to the IRS. The court disagreed, reasoning that these issues were separate from the FLSA claims so they couldn’t be raised by the employers as a defense to the company’s own failure to abide by the law.

Continue reading "Undocumented Workers May Be Entitled To Back Pay" »

A hotly contested topic around the country is whether workers should be paid for time spent changing their clothes. A failure to pay an employee for all of the time-spent working may be a violation of the Federal Labor Standards Act (FLSA). Under the FLSA, employers must pay all non-exempt workers for all time-spent working, including overtime for time put-in in excess of 40 hours in any one work week. Your overtime rate is one and one-half times your regular rate of pay.

If you have any questions about the FLSA or believe you may not have been paid all the compensation you are entitled to it’s important to consult with an experienced Atlanta wage and hour attorney right away.

Despite fairly straightforward sounding rules, many employers either mistakenly or intentionally fail to pay their workers compensation – including overtime pay – for all hours worked. An example of where a lot of confusion exists is whether workers should be compensated by their employers for time spent changing clothes (in legal terms, “donning and doffing). Although generally time spent changing clothes may not be counted as compensable time worked, it depends on the type of work and type of clothing involved. Where workers are required to change into safety equipment, many courts around the county are requiring that employers pay workers for the time spent “donning and doffing.”

The Ninth Circuit (which includes Oregon, Washington, Idaho, Montana, Colorado, Nevada, Arizona, Arkansas and Hawaii) determined that changing in safety equipment is distinct from putting on ordinary work clothes, so they should be paid for this time.

Continue reading "Should Your Employer Pay You For Time Spent Changing Your Clothes?" »

Most employers are aware of certain guidelines under the Federal Fair Labor Standards Act (FLSA), including the requirement that workers be paid minimum wage and non-exempt employees be paid overtime compensation at a rate of one and one-half times their regular rate of pay.

However, an investigative report just released reveals that employers are less familiar with recent amendments to the FLSA aimed at helping nursing moms. The FLSA as amended by the Affordable Care Act, requires that all employers, regardless of size, they provide break time and private spaces – other than bathrooms – for nursing mothers to express breast milk.

The FLSA amendment applies to all employers – regardless of size. However, employers with less than 50 employees can be exempted provided that they demonstrate compliance would impose an “undue hardship.”

If you have questions about your rights as a nursing mother at work, or other questions regarding labor and employment laws, please consult an experienced Atlanta wage and hour attorney right away.

Specifically the provision states that employers must provide:

``reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child's birth each time such employee has need to express the milk.'' Employers are also required to provide ``a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.''

Continue reading "Nursing Mom’s Rights Under The Fair Labor Standards Act – Is Your Employer Doing What It Needs?" »

The combination of the sluggish economy and advances in technology has led to an increase in the number of “start-ups” – new entrepreneurial ventures that are often started with little capital. Start-ups face certain unique employment law issues. Even though they may start out too small to be regulated by all state or federal labor laws, as they grow these laws may affect them. Further certain laws still apply – regardless of the start-up’s size.

This means before you take a position at a start-up – or even start as an “unpaid intern” - you should be aware of your employment law rights. Many times, start-ups don’t have the resources for a general counsel or professional HR staff so they may be more likely to make errors and violate federal and state labor laws than established companies.

If you have questions about your employment rights or are looking to accept a position at a start-up, it’s a good idea to consult with an experienced Georgia wage and hour attorney right away.

One of the top considerations to keep in mind is how will you be classified – exempt v. non-exempt? The Federal Labor Standards Act (FLSA) provides that all non-exempt workers must be paid overtime compensation at a rate of one and one-half your regular rate of pay for hours worked in excess of 40 in any one workweek. If you’re exempt, you will not be entitled to overtime pay regardless of the number of hours worked.

Continue reading "Do Start Ups Need To Pay Their Employees Overtime Compensation?" »

Many workers think that if they get a salary they are not entitled to overtime compensation. This is not the case. Generally, whether your employer should pay you overtime wages depends on whether you are exempt v. non-exempt, not whether you earn a salary or are an hourly wage earner.

Under the Fair Labor Standards Act (FLSA), all non-exempt employees are entitled to overtime pay at a rate of one and one-half times their hourly rate of pay.

If you have questions about whether you should be receiving overtime pay or not, it is a good idea to consult with an experienced Georgia wage and hour attorney right away.

Exemptions are rules that state that 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 the overtime laws, and your employer need not pay you time and a half no matter how many hours you work in a week.

If, however, the exemptions do not apply to you, then you are considered non-exempt, and your employer must pay you time and a half for every hour you work more than 40 in any workweek.

Three principal exemptions exist under the FLSA:

• Executive, such as managing your employer’s business, or customarily or regularly direct the work of at least two employees, and have the ability to hire or fire other employees, or have significant input into hiring, firing and other important employment decisions.
• Administrative, such as non-manual work directly related to the management or general business operation of your company business and involve the exercise of discretion and independent judgment.
• Professional, such as work that requires advanced knowledge and is intellectual in nature, comes from an advances degree or involves artistic or creative work.

Continue reading "Am I Entitled To Overtime Pay If I’m A Salaried Employee?" »

What happens if you are scheduled to work and a hurricane strikes, or your office building floods, or the weather prevents you from getting to work? Are you entitled to be paid when a natural disaster keeps you from putting in the hours planned?

A lot of that depends on whether you are considered an exempt or a non-exempt employee.

The federal Fair Labor Standards Acts (FLSA) provides certain guidelines including requiring all workers be paid minimum wage and that non-exempt workers be paid overtime at a rate of one and one-half their regular hourly rate of pay for each hour worked in excess of 40 hours in any work week.

If a storm or other natural disaster forces a business to alter it’s usual schedule, what are your rights as a worker?

If you have questions concerning your take home pay, or any other wage or hour issue, it is important to consult with a dedicated Atlanta wage and hour attorney right away.

Generally, if you are a non-exempt worker but you do not work for whatever reason, the FLSA provides that you don’t have to be paid. This is generally true even in the event of a natural disaster, and even if you show up ready to work and you are sent home. On the other hand, if you are exempt, you are entitled to receive your regular pay, as long as it’s only a couple of days that you miss work due to the problems related to the natural disaster. If a business is closed for longer than a week, then additional considerations may affect both exempt and non-exempt workers’ take home pay.

Continue reading "How Does A Natural Disaster Impact Your Take Home Pay?" »

In a recent unpaid wage lawsuit, an emergency care nurse asserted that she routinely worked through her lunch break but was not paid for the half-hour while she was scheduled to be eating. She filed a Fair Labor Standards Act lawsuit against the hospital seeking back wages. The nurse was not the only one who was required to work through breaks. As a result, the lawsuit was brought as a “collective action,” a special type of FLSA lawsuit. Filing a class action helps to bring the maximum amount of pressure to bear on an employer to change its ways and pay you all the compensation you are entitled to.

If you have any wage and hour questions or believe that you have been denied overtime pay or other compensation you deserve, it’s a good idea to speak to an experienced Atlanta wage and hour attorney right away.

In this instance, the woman worked for Baptist Memorial Health Care Corp. in Memphis. Time set aside for lunch was included in all the shifts she worked, and that half-hour set-aside was automatically deducted from her paycheck.

The Fair Labor Standards Act (FLSA) provides that all workers must be paid at least minimum wage and that non-exempt workers who work in excess of 40 hours in any work week are entitled to overtime compensation at a rate of one and one-half times their regular rate of pay.

The most important issue in overtime law is whether or not the law applies to the type of work you do—whether or not you are exempt. Exemptions are rules that state that 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 the overtime laws, and your employer need not pay you time and a half no matter how many hours you work in a week.

Continue reading "Non-Exempt Workers Must Be Compensated If They Work Through Lunch" »

News reports that a Houston restaurant has just settled a Fair Labor Standards Act (FLSA) lawsuit filed by dozens of wait staff, kitchen workers, cashiers, hostesses, runners, cart pushers, busboys and dishwashers filed as the result of the failure of management to pay the many workers they were entitled to under the federal labor law provisions.

The settlement was brought about as the result of alleged misclassification of the workers – a growing trend seen across many different types of employment. Misclassification refers paying non-exempt workers as “exempt” workers or vice versa. The failure to correctly classify workers may significantly impact your take home pay. Exempt workers are not entitled to overtime compensation regardless of the number of hours worked in a week whereas non-exempt workers must be compensated at a rate of one and one-half their regular rate of pay for ever hour worked in excess of 40 hours in any work week.

If you have questions concerning whether you have been misclassified or believe that you may not have received the wages you are entitled to, it’s a good idea to talk to an experienced Atlanta wage and hour attorney right away.

Continue reading "Misclassification Leads To FLSA Lawsuit" »

As winter approaches many people don’t realize understand the connection between bad weather and your take home pay. For example – what if bad weather forces a business to close and give employees days off they were counting on? What if weather just causes you to be late to work? Or what if you work in an industry that people requires longer hours when weather turns bad – such as first-responders or utility workers?

For both employers and workers, it's important to understand how weather conditions can affect your wages. Below are some tips to keep in mind as you go through the winter months. If you have additional questions about your pay, it’s a good idea to seek the advice of an Atlanta wage and hour attorney to ensure you are getting all the compensation you are entitled to.

1. How will my pay be affected if I am late for work because of bad weather or I have to leave early to beat a storm? What if I have to stay late?

The answer to this question depends on whether you are classified as exempt v. non-exempt. Under the FLSA, workers who are non-exempt are only paid for the time worked. This means if you leave early you will not be paid for that time. On the other hand if yo are required to stay late to help during a storm or provide crucial services to help get people back up and running following a storm you must be paid overtime compensation. Your employer cannot require you to work extra without compensation.

If you are exempt, you may still receive a full day's pay (but this may depend on your company’s leave policy). However, you will not be entitled to overtime if you have to work longer hours.

Continue reading "Bad Weather May Affect Your Take Home Pay" »

News reports that a California based bank has agreed to pay $1 million to settle a Fair Labor Standards Act (FLSA) wage and hour case. The overtime pay lawsuit filed by the Department of Labor’s (DOL) Wage and Hour division alleged that First Republic Bank violated the FLSA by failing to pay close to 400 employees the overtime compensation they were entitled to. The bank erroneously classified administrative and professional employees as exempt, and not eligible for overtime.

How a worker is classified can have an enormous impact on an individual’s take home pay. The FLSA requires that most employers pay their employees minimum wage and that “non-exempt” workers be paid overtime compensation at a rate of one and one-half times their regular rate of pay for time worked in excess of 40 hours in any work week. On the other hand “exempt” workers are not entitled to overtime pay, regardless of the number of hours worked.

Exemptions typically apply to certain individuals employed in executive, administrative, professional and outside sales positions, as well as certain computer employees. Further, an employee must make more that $455/per week and meet certain requirements based on their mob duties. The determination of who is exempt v. non-exempt isn’t based on an employee’s job title, but rather the nature of the work he or she does.

Employers misclassifying employees – whether mistaken or intentional – is one of the most frequent causes of wage and hour lawsuits. If you have questions about your classification or believe that you may have been denied all the overtime pay you are entitled to, it’s a good idea to consult with an Atlanta wage and hour attorney right away.

Here, bank employees in several states including California, Connecticut, Massachusetts, New York and Oregon will receive settlement proceeds based as the result of the FLSA lawsuit. As stated by Secretary of Labor Hilda Solis: “As this investigation demonstrates, improper classification results in improper wages and causes workers real economic harm.”

Continue reading "Bank Agrees To Pay $1 Million For Denying Workers Overtime Pay" »

A new lawsuit alleging violations of the Fair Labor Standards Act (the “FLSA”), including the failure to pay required overtime compensation has been filed by two Charlotte bankers. The wage and hour lawsuit alleges that the bankers were required to work overtime hours in order to meet quotas, but were not paid for their time.

The FLSA covers several different areas including child labor laws, however two main provisions – its minimum wage guarantees and overtime wage provisions - affect nearly all employees who work for a wage in the United States.

Specifically, the overtime wage provision sets forth 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 in any one work week. Although this sounds straightforward, it’s an employer’s failure to comply with overtime provisions that often leads to wage litigation.

If you have questions about the FLSA or believe that you may have been denied all the compensation you are entitled to, it’s a good idea to speak to an experienced Atlanta wage and hour attorney. If your employer has violated wage and hour laws, it may be possible to recover back wages, damages and even your attorneys fees.

Here, a former loan processor asserts that she and her co-workers were forced to work late to meet mandatory quotas and were not paid for their time. In a separate case, a Sun Trust Bank financial services representative also asserted that she was forced to stay late to make mandatory sales quotas. She claims that she was also required to work one night a week without overtime pay trying to sell services.

These cases represent a growing trend of wage and hour lawsuits being filed as the result of wage violations. Often as large companies have downsized they have demanded more hours from their employees. At the same time, more employees have fallen into a grey area of who is an “exempt v. non-exempt” employee. This classification can have an enormous impact on take home pay since “non-exempt” employees are entitled to overtime pay. On the other hand, “exempt” employees are not entitled to overtime compensation, regardless of the number of hours worked.

Continue reading "Overtime Pay Lawsuits On The Rise " »

After Hurricane Sandy wreaked havoc, causing significant upheaval and destruction throughout Northeast region of the United States, many workers have spent significant amounts of overtime hours trying to repair damage from the hurricane and restore power to thousands of customers without heat or electricity. However, as alleged in a new federal wage and hour lawsuit despite the dedication of these workers to put in 60 to 80-hour workweeks, at least one utility has failed to pay them the overtime wages they are entitled to.

If you have wage and hour questions, or concerns that you have not been paid all the overtime wages you deserve, its important to seek the advice of a top Atlanta wage and hour lawyer right away.

News reports that Transport Workers Union of America Local 101 has sued National Grid Plc in federal court alleging violations of federal labor law, including the Fair Labor Standards Act (FLSA). Although the FLSA covers a number of different areas, including child labor laws, there are two key provisions of the FLSA that impact just about every employee who works for a wage in this country, minimum wage and overtime. The FLSA provides that workers must be paid minimum wage and non-exempt workers who put in more than 40 hours in any one work week are entitled to be paid overtime compensation at a rate of one and one-half times their standard rate of pay.

In this instance, the Union workers allege that despite putting in long hours for the past three weeks, they have received no additional pay. A representative of the utility blames the lack of pay on an “automated payroll problem.” Despite this excuse, the Union is understandably concerned that they will not be paid. As the Union president notes, “My members are working but they’re getting frustrated.” Storm-related repairs and inspections to gas lines and boilers may go on for another two months.

Continue reading "Workers Denied Overtime Pay For Hurricane Sandy Cleanup File Wage And Hour Lawsuit" »

A new class action employment lawsuit has been filed against Wal-Mart and two staffing agencies responsible for placing workers at Wal-Mart stores in the Chicago area. According the minimum wage lawsuit, the Wal-Mart, Labor Ready Midwest, and QPS Employment Group violated federal and state laws by denying workers legally mandated overtime pay and in some cases, paying them less than minimum wage for hours worked.

The lawsuit has been filed by 20 workers who worked for one of the two staffing agencies and were regularly placed at Wal-Mart stores. Much of the work was temporary, and included tasks such as stocking shelves.

With the holiday season rapidly approaching the number of temporary workers hired across the country by many businesses - from retailers to restaurants - is bound to increase. It is critical you know your rights and that you get paid what you deserve when you accept a job. If you have questions concerning your pay, and your right to overtime compensation or any other protection guaranteed by federal or state labor law, it’s a good idea to seek the advice of an experienced Atlanta wage and hour attorney right away.

Under the Federal Fair Labor Standards Act (FLSA) workers are entitled to minimum wage and non-exempt workers must be paid overtime pay at a the rate of 1 and ½ times their regular rate of pay for every hour worked in excess of 40 in any workweek. The failure to follow minimum wage or overtime guidelines may be a violation of the FLSA. Further, most states have employment laws similar to the FLSA, so often if an employer violates federal law, its quite possible the company has also violated state law. Further, if a certain employment practice is contrary to the law, it is likely that more than one person is affected and it may be possible to bring a class action lawsuit.

Continue reading "New Overtime Pay And Minimum Wage Violation Lawsuits Filed Against Wal-Mart And Temp Agencies" »

During this election season, employers and employees may be tempted to discuss politics. Although it may be okay to have polite discussions – employers have been found to “cross the line” by requiring workers attend political events or demanding workers participate or donate to one candidate’s position. In these situations it may be possible to file a Fair Labor Standards Act (FLSA) lawsuit.

For example, in one recently reported situation employees are seeking to bring a class-action wage and hour lawsuit against a company that has repeatedly mandated that employees spend a day without pay attending political events, most recently a Romney campaign event. Sources indicate that the company notifies its worker each month of the political causes and events it supports, and “encourages” its employees to contribute 1% of their income to political causes through a payroll deduction.

Under the FLSA, workers must be paid for all time spent on the job, and non-exempt employees must be paid one and one-half times their hourly rate for all hours in excess of 40 hours in any workweek. Failure to compensate employees for time spent working – including mandatory time spent at political events - may constitute a violation of Federal labor law. If you have questions about federal labor law, it’s a good idea to consult with a top Atlanta wage and hour attorney right away.

Other potential violations include employees being coerced to donate time and money to an employer’s desired candidate. In this instance, inside sources say that internal correspondence had a threatening tone and included language such as: “have your salaried employees make their contribution as soon as possible. Please see that they ‘step up,’ for their own sakes and those of their employees.”

Further although the 2010 Citizens United case suggests that employers may compel workers, on pain of termination, to attend meetings where company political viewpoints are aired some limitations exist. Employers may not threaten or coerce another person so as to interfere with that person’s right to vote for whomever he or she chooses.

Continue reading "Being Forced To Attend Political Events Without Pay May Be A Violation Of The FLSA" »

Pop star Celine Dion has just settled a back wage lawsuit with a former employee for an undisclosed sum.

The lawsuit, filed by Keith Sturtevant, alleged that the singer along with her husband and manager failed to pay the warehouse manager the overtime pay he was entitled to. Sturtevant claimed that the couple illegally classified him as “exempt,” and as a result, did not pay him the overtime compensation he deserved pursuant to U.S. federal labor law.

A spokesperson for Dion stated: '[Keith was] paid a handsome yearly salary that covered overtime for his services for three years.''

While neither side claims victory in this matter, the episode highlights one of the most common violations of the Fair Labor Standards Act – the impact classifying a worker as exempt vs. non-exempt. Non-exempt employees are entitled to overtime pay at a rate of one and one-half times their standard hourly rate. On the other hand, exempt employees are not entitled to any overtime pay, regardless of the number of hours worked.

Because how you are classified may make a significant difference in your take home pay, ensuring your employee classification is correct is critical. If you have questions concerning whether you are exempt vs. non-exempt, it’s a good idea to seek the advice of a knowledgeable Atlanta wage and hour attorney right away.

Determining whether you are exempt or not can be a difficult question – with many employment lawsuits across the country seeking to define just what jobs are considered exempt. Exemptions typically apply where 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 the overtime laws, and your employer need not pay you time and a half no matter how many hours you work in a week.

Continue reading "Lessons To Learn From Celine Dion Back Pay Lawsuit" »

Some of the more common work related lawsuits are wage-and-hour lawsuits. These legal claims may be filed by private attorneys on behalf of workers and generally assert that an employer failed to pay enough wages to an employee or failed to pay him or her the overtime compensation deserved.

Under Federal labor law – the Fair Labor Standards Act (FLSA) – it is a violation to fail to pay workers minimum wage. Further, “non-exempt” employees are entitled to overtime at the rate of one and one-half their standard rate of pay for time spent working in excess of 40 hours in any one workweek.

If you have questions about whether you have received all the pay you are entitled to, it’s a good idea to speak with a knowledgeable Atlanta wage and hour attorney right away.

Despite these fairly straightforward rules, wage and hour lawsuits are on the rise. According to a recent article, “Wage and hour lawsuits proliferate,” the number of federal lawsuits based on FLSA claims has more that tripled in the last decade, with more than 7,000 wage and hour cases filed in the last year.

Worker’s advocate believe that the economy may be the reason, stating "The nation's economic woes have fueled many of the lawsuits, as companies squeeze more productivity out of smaller staff." Further, additional "stresses put on workers ... adds to the ability for workers to come forward and bring claims."

Other factors cited for the increase in claims include employees working longer hours but not getting raises, as well as more workers seeking employment law advice from knowledgeable wage and hour attorneys being laid off or fired. With increased scrutiny comes a greater awareness of improper wage and hour practices.

Continue reading "Claims Of Pay Violations On The Rise " »

The California assembly has just approved legislation that will provide domestic workers overtime pay, rest periods and other labor protections similar to those granted other types of workers under the Federal Fair Labor Standards Act (FLSA). While Assembly Bill 889 only applies to California workers, it may serve as a model for future federal and state legislation across the country. Providing home health care workers protection under the FLSA has been a top priority of worker’s rights advocates who believe that domestic workers have been unfairly left without government labor protection.

If you believe you have been denied all of the wages you are entitled to – or if you simply have questions concerning your rights as a worker - it’s important to speak to a top Atlanta wage and hour lawyer right away.

The California law seeks to protect domestic workers against exploitation. Similarly, due to concerns that home health care workers are not receiving the labor protections they deserve, this past December President Obama announced his intention to make revisions to the FLSA to include home-care employees. This change would greatly benefit many hard working Americans who have been excluded from its protections. If covered, home care workers would be entitled to many of the minimum wage and overtime provisions.

Under the proposed rule, the Department of Labor seeks to clarify who would be an “exempt” companion and who would be considered an employee that performs services that don’t fall within the new definitions and are entitled to minimum wage and overtime. This would include work such as housekeeping, cooking and medically related services.

A home health care worker article expressing the need for changes explains, “With a work force of about 2.5 million, two-thirds of whom would be affected by the proposed rule, home health and personal care is the second-fastest-growing job category in the country, projected to double by 2018. "As women, immigrants and service workers have become the new face of labor, what happens to home care matters for the shape of our economy, the fate of unionism and the establishment of a decent standard of living for all.”

Continue reading "Home Health Care Protections Gain Steam" »

A new overtime pay lawsuit has been filed by two workers alleging pay violations against Darden Restaurants. The Federal Labor Standards Act lawsuit alleges that thousand of servers across the country at Olive Garden, LongHorn Steakhouse, Red Lobster and other restaurants were denied all the pay they were entitled to. The FLSA guarantees two basic provisions to just about every employee who works for a wage in this country – minimum wage and overtime.

The overtime law states 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 in any workweek.

While this may sound simple – FLSA violations are more common than you might think. If you believe you have not been paid all that you are entitled to it’s a good idea to talk to an experienced Atlanta wage and hour lawyer. Further, many times if one employee has been underpaid, others have as well. This means it may be possible to file a class action lawsuit that will place even more pressure on an employer to change its practices.

Here the overtime pay lawsuit is a collective action seeking to represent current and past employees that worked for Darden and seeks back pay and other compensation. A representative notes, “Darden has a companywide pattern and practice of paying its employees below minimum wage and less than what the law requires.”

The FLSA lawsuit includes several claims against Darden such as:

• Requiring servers to show up at a specific scheduled shift but not being allowed to clock in until customers began arriving. Some were also forced to clock out and continue working without pay;
• Employees who worked more than 40 hours in a workweek and not receiving overtime pay; and
• Tipped employees performed sufficient side work to entitle them to minimum wage, which they did not receive.

Some of these potential FLSA violations are common occurrences at many work places across the county.

Continue reading "Overtime Pay Lawsuit Filed Against Olive Garden" »

A new overtime pay lawsuit has been filed by two workers alleging pay violations against Darden Restaurants. The Federal Labor Standards Act lawsuit alleges that thousand of servers across the country at Olive Garden, LongHorn Steakhouse, Red Lobster and other restaurants were denied all the pay they were entitled to. The FLSA guarantees two basic provisions to just about every employee who works for a wage in this country – minimum wage and overtime.

The overtime law states 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 in any workweek.

While this may sound simple – FLSA violations are more common than you might think. If you believe you have not been paid all that you are entitled to it’s a good idea to talk to an experienced Atlanta wage and hour lawyer. Further, many times if one employee has been underpaid, others have as well. This means it may be possible to file a class action lawsuit that will place even more pressure on an employer to change its practices.

Here the overtime pay lawsuit is a collective action seeking to represent current and past employees that worked for Darden and seeks back pay and other compensation. A representative notes, “Darden has a companywide pattern and practice of paying its employees below minimum wage and less than what the law requires.”

The FLSA lawsuit includes several claims against Darden such as:

• Requiring servers to show up at a specific scheduled shift but not being allowed to clock in until customers began arriving. Some were also forced to clock out and continue working without pay;
• Employees who worked more than 40 hours in a workweek and not receiving overtime pay; and
• Tipped employees performed sufficient side work to entitle them to minimum wage, which they did not receive.

Some of these potential FLSA violations are common occurrences at many work places across the county.

Continue reading "Overtime Pay Lawsuit Filed Against Olive Garden" »

With the opening of the United States Open new questions are being raised about what goes on behind the scenes, especially concerning those who work to ensure the Open is conducted fairly. At issue is the contention that the United States Tennis Association (USTA) violated state and federal labor laws by failing to pay proper wages and overtime compensation to its chair umpires and line jobs.

The Fair Labor Standards Act (FLSA) provides that nearly everyone who works for a wage receive minimum wage and that non-exempt workers receive overtime pay compensation at a rate of one and one-half times their standard rate of pay for each hour worked more than 40 hours in any one work week. Problems occur however when employers erroneously classify workers or improperly calculate the amount of time a worker has put in. Whether intentionally or by mistake, a failure to pay a worker what he or she deserves may be a violation of both state and federal labor laws. If you believe you have not been paid all the compensation you are entitled to, it’s important to consult with an experienced Atlanta overtime pay lawyer right away.

Here, about 300 chair and line umpires come to New York to work at the Open. There pay includes travel expenses and most hotel, meal and miscellaneous costs over the 2 and half weeks of the tournament. They are paid between $115 to $250/day, the lowest compensation among similar Grand Slam events. The umpires are not paid overtime compensation for long lasting matches, with some ending after midnight and the umpires receiving no extra compensation. The overtime lawsuit asserts that the umpires are entitled to employee status, as well as overtime compensation for the work they provide.

Continue reading "Questions Raised About Federal Labor Law Violations At US Open" »

News reports that overtime complaints - claims filed by workers based on violations of the Fair Labor Standards Act (FLSA) – have hit record numbers. Pursuant to the FLSA, non-exempt workers are entitled to overtime wages in the amount of one and one-half times their regular rate of pay for each hour worked in excess of 40 hours in any one workweek. The problem is many workers who are entitled to overtime compensation are denied all of the pay they are entitled to – often due to their employer misclassifying them, either intentionally or mistakenly.

Misclassification is a common occurrence with determining who is exempt vs. non-exempt a close call in many situations. For many individuals, being entitled to overtime pay can make a significant difference in his or her weekly take home pay. If you have questions concerning your classification and whether you may be entitled to additional compensation for overtime pay, it’s important to consult with a top Georgia overtime pay attorney. The recent overtime pay article notes that the number of FLSA complaints has skyrocketed, with more than 7000 overtime violation lawsuits filed in 2011. 7064 cases have already been filed this year, putting it on track for an all-time high. The reasons for increased lawsuits are several, including confusion concerning overtime laws and the weak economy leading to more employers cutting corners.

Overtime violations hit low-wage workers even harder. In a study by the National Employment Law Project, 77% of low-wage workers who reported working more than 40 hours in a week did not received the overtime compensation they were entitled to. For workers who put in more than 10 hours a day, 93% of workers reported not receiving the required overtime pay. Overtime violations were not the only FLSA infraction, 21% of worker reported making less than the required minimum wage. According to the study, the average low wage worker loses out on $58 per week and $3,000 per year due to wage violations by employers.

Fortunately, the federal government has started cracking down on employer wage violations. The Department of Labor is focusing on industries -- such as restaurant, hospitality, janitorial, health care and day care -- where wage theft is believed to be widespread. In the last fiscal year, the Department of Labor has collected over $224 million in back wages for more than 275,000 workers.

Continue reading "Employers Violating Overtime Laws On The Rise " »

The Fair Labor Standards Act (FLSA) is one of the oldest federal labor laws and is designed to protect workers. It applies to nearly everyone who works for a wage in the Untied States, and ensures that individuals receive at least minimum wage and non-exempt employees receive overtime compensation at a rate of one and one-half times their standard hourly wage. As a result, whether you are exempt or non-exempt can make an enormous difference in the amount of your take home pay.

Employers frequently – either mistakenly or intentionally – misclassify employees as falling into one the categories of exemptions detailed in the FLSA. If you have questions about your classification or think you may not be receiving all the compensation you are entitled to, it’s important to seek the advice of a top Atlanta wage and hour attorney right away.

A recent FLSA article discusses the May 2012 Wal-Mart settlement that will provide $4.83 million in back wages and damages for more than 4,500 Wal-Mart workers. The damages were the result of misapplied exemptions that resulted in pay violations and penalties. The DOL noted that the corporation failed to compensate vision-center managers and asset protection coordinators for overtime pay they were entitled to, considering them to be exempt from the Fair Labor Standards Act’s (FLSA) overtime requirements. The DOL stated "although the violations cited in this investigation involved one of the nation’s largest employers, there are lessons to be learned for all organizations.”

Secretary of Labor Hilda L. Solis issued a statement following the settlement providing “Misclassification of employees as exempt from FLSA coverage is a costly problem with adverse consequences for employees and corporations ... let this be a signal to other companies that when violations are found, the Labor Department will take appropriate action to ensure that workers receive the wages they have earned.”

Determining the right classification is some situations may be complicated.

Continue reading "You May Be Entitled To Back Pay If Your Employer Makes An Error In Your Classification" »

A recent case out of Pennsylvania highlights an important issue affecting many workers today - Am I entitled to overtime pay?

In this instance, a group of nurses claimed that they were entitled to overtime pay and were unfairly denied all the compensation they were entitled to. Under the Fair Labor Standards Act (FLSA), nonexempt workers who work more than 40 hours in any given workweek are entitled to receive overtime pay. This means determining whether you are “exempt” or “non-exempt” is very important.

Exemptions are rules that state that 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 the overtime laws, and your employer need not pay you time and a half no matter how many hours you work in a week. However, if you’re non exempt you are entitled to overtime pay is calculated at the rate of one and one-half times a worker’s typical rate of pay. Because only non-exempt workers are entitled to overtime wages, determining whether you are exempt or non-exempt can make a significant difference on an individual’s take home pay.

If you have a question concerning whether you are exempt v. non-exempt, and whether you are entitled to overtime pay, it is important to speak to a knowledgeable Atlanta wage and hour lawyer right away.

Here, the original complaint was filed by a nurse who worked for 30-years at the Lehigh Valley Hospital – Muhlenberg. According to the lawsuit, nurses were required to report at least 15 minutes before their shifts began and stay for an additional 15 to 20 minutes after their shifts ended in order to transfer and receive information about their patients. Additionally, nurses were routinely required to work extra hours after their official workday ended, frequently up to two or more extra hours without pay. Mealtime breaks were also not compensated.

Court records provide that several nurses at the Lehigh facility could have been affected, making this a potential class action lawsuit composed of nearly 2000 nurses. Many times, if you have been denied overtime chances are others in the same position have as well, and the case may be brought as a FLSA class action, or collective action, which will help you bring the maximum pressure to bear on your employer to change its ways and to pay you all the compensation you are owed. In this instance, without admitting wrongdoing, the Heath Corporation that oversees the hospital agreed to pay $4.5 million to settle the lawsuit.

Continue reading "Hospital Settles Overtime Pay Lawsuit" »

In a recent lawsuit out of New Mexico, 4 security guards, all classified as executives exempt from coverage under the Fair Labor Standards Act (FLSA) sued, challenging their classification. The security guards hade a mix of managerial and nonmanagerial duties. Whether you are exempt v. non-exempt can be difficult. If you’re considered “non-exempt” you may be entitled to overtime pay, which can significantly impact your take home wages.

If you have questions about your classification, or think you may be improperly classified and not received the wages you are entitled to, it’s important to speak to an experienced Atlanta wage and hour attorney.

In Maestas et al. v. Day & Zimmerman and SOC, the security guards challenged their classification status. The guards were ranked in a hierarchical, military-style structure, with supervisors carrying such ranks as major, captain, and lieutenant. Only the lowest-level guards were considered non-exempt, while the other positions were all classified as exempt.

On appeal the court determined that while the supervisors should be considered exempt, how the others should be classified is a “factual determination” that should be decided by a jury. For example, duties of the lieutenant included ensuring daily that all posts are staffed properly and filling in if one is empty. The lieutenant was also responsible for visually inspecting and assessing subordinate officers as well as responding to any alarm. Whether these are managerial are not is a factual determination and one best left to the jury.

The court noted, "Because the primary duty determination is a factual one, summary judgment is appropriate only if all reasonable fact finders would conclude that the managerial portions of plaintiffs' jobs are their 'primary duties.'" Here, where many of the guards were not engaged in managerial type positions, it was possible that a jury could find they were misclassified.

Continue reading "Whether You’re Exempt or Nonexempt Can Significantly Affect Your Take Home Pay" »

In a victory for thousands of employees, the Wal-Mart back wages case has been resolved, with Wal-Mart agreeing to pay $4.83 million in back wages and damages to employee based on violations of the federal Fair Labor Standards Act (FLSA) overtime provisions.

The FLSA requires that all non-exempt employees be paid overtime for time worked in excess of 40 hours in any workweek at the rate of 1 and ½ times your regular rate pay. If you have questions about overtime pay, or think you haven't been paid what you deserve, it's important to speak with a knowledgeable Atlanta overtime pay lawyer right away.

Determining whether an employee is exempt or non-exempt is a critical.

Exemptions are rules that state that 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 the overtime laws, and your employer need not pay you time and a half no matter how many hours you work in a week.

There are three principal exemptions under the FLSA:
• Executive
• Administrative
• Professional

Employees who are non -exempt are entitled to overtime pay, which can make a big difference in your take home pay.

Here, the U.S. Department of Labor (DOL) has determined that Wal-Mart violated the FLSA by misclassifying the employees as exempt and denying the workers the overtime they were entitled to.

Continue reading "Wal-Mart Pays $4.83 Million In Back Wages For Overtime Violations" »

A recent overtime lawsuit from New York emphasized the fact that citizenship status does not affect whether workers are protected by the Fair Labor Standards Act (FLSA) and entitled to overtime pay. The case looked at whether it’s okay to pay workers a set rate per day, rather than an hourly rate. The answer depends in part on if the workers are required to work more than 8 hours in a day, if they receive overtime compensation and if their pay meets minimum wage requirements. Whether the worker is an illegal alien does not affect his or her right to fair pay.

If you have questions regarding your paycheck and if your employer is paying you all the wages you are entitled to, it’s a good idea to meet with an experienced Atlanta wage and hour attorney. A knowledgeable wage and hour lawyer can review your pay stubs talk about your work situation, and help you determine your next steps.

The New York case involved a nail salon that paid its workers a set rate of pay for each day worked, regardless of how many hours worked. The employees often ended up working more than 40 hours per week without receiving overtime pay. Under the federal labor law (the Fair Labor Standards Act [FLSA]), non-exempt employees must be paid overtime compensation at a rate of 1 and ½ times their regular rate of pay for hours worked over 40 hours in any workweek. The nail salon also failed to keep records of employees’ pay and hours as required by law.

Continue reading "Employers Must Pay Workers Overtime, Regardless Of Citizenship Status" »

Since the height of the recession in 2008, millions of workers have been laid off, forced to work longer hours and many have received less pay. Now workers are striking back in court. According to a recent overtime lawsuit article, there has been a dramatic increase is workers suing employers pursuant to both federal and state labor laws as the result of overtime violations.

The main concern – workers putting in more than 40 hours a week without receiving overtime pay. The Fair Labor Standards Act (FLSA) requires that employers pay non-exempt employees overtime wages at a rate of one and one-half their regular rate of pay for any time worked in excess of 40 hours in any workweek. State labor laws contain similar overtime provisions.

If you have questions concerning whether you are entitled to overtime pay or believe that your employer has failed to pay you the compensation you deserve, consulting with an experienced Georgia overtime pay attorney is an important to determine your next steps.

The main complaints workers face come from putting in extra time as the result of a variety of practices, including:

• Working “off the clock”
• Being misclassified as “exempt” and not receiving pay for overtime work
• Work time encroaching on personal time with the increased use of smartphones and other technology

Continue reading "Overtime Lawsuits On The Rise" »

News reports that hundreds of workers who helped with the BP Gulf oil spill clean up will receive money in back wages. According to statements, an investigation by the U.S. Department of Labor’s Wage and Hour Division revealed violations of federal labor law – the FLSA – including overtime and record-keeping infractions.

The FLSA is one of the oldest federal employment laws and sets forth certain minimum wage and overtime standards. Based on the FLSA, all employees who are not exempt must be paid at a rate of one and one-half your regular rate of pay for all hours worked in excess of 40 hours in any workweek. The failure to pay overtime is one of the leading types of FLSA violations and may lead to an FLSA lawsuit.

If you have questions about the FLSA or believe you have not received all of the overtime pay you are entitled to, consulting with an experienced Georgia overtime pay lawyer is important to ensure you receive all the compensation you are entitled to.

Here, many temporary and permanent employees for the shipbuilding industry who were hired to assist with cleanup efforts after the BP Gulf oil spill were denied all the wages they were entitled to. Reports from the DOL found that employees were only paid for scheduled hours – not overtime work – and the employer failed to keep a record of or pay employees for time spent on work-related tasks before the beginning and after the end of their scheduled work shifts. Many recent lawsuits across the country have found violations of the FLSA where employees are not paid for all time spent at-work. Examples of unpaid hours included time spent traveling to work sites, attending meetings, obtaining assignments and having personal protective equipment.

Continue reading "Spill Workers To Receive Back Wages" »

This past Wednesday marked the deadline to comment on the Department of Labor’s (DOL) proposed rule to amend the Fair Labor Standards Act (FLSA) to cover home health care workers.

Despite providing protections for nearly all U.S. employees who work for a wage, including ensuring workers receive minimum wage and overtime, a long-standing loophole has excluded “companionship” workers from receiving these protections.

When the act was approved, the exemptions were meant to apply to casual babysitters and companions for the elderly and sick, not workers whose primary job is providing home care. In 1974, Congress extended these wage protections (it did not include overtime however) to domestic workers but did not include “companions” for the elderly.

Currently, an estimated 2.5 million individuals work as home health care providers/personal assistants and stand to benefit from the amendment. The number of home health care providers is expected to significantly increase, as the U.S. population ages. If you have any wage and hour questions or are concerned that you are not receiving the pay that you deserve, it is important that you consult with an experienced Georgia wage and hour law firm to ensure your rights to fair pay are protected.

The currently proposed rule would extend the federal minimum wage and overtime protections to currently excluded home care workers--who are disproportionately female and of color. Labor Secretary Hilda Solis notes, "The care provided by in-home workers is crucial to the quality of life for many families … The vast majority of these workers are women, many of whom serve as the primary breadwinner for their families. This proposed regulation would ensure that their work is properly classified so they receive appropriate compensation and that employers who have been treating these workers fairly are no longer at a competitive disadvantage.”

Continue reading "Overtime For Home Health Care Workers Proposed " »

Louisiana becomes the latest state to join forces with the U.S. Department of Labor’s Wage and Hour Division to crack down on employers who misclassify workers. Whether a worker is classified as exempt v. non-exempt, or as an independent contractor or employee, may have a large impact on an individual’s take home pay, as well as other employee protections and benefits.

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 may not be required to pay overtime compensation.

If you are uncertain of your classification or believe your employer may have misclassified you – either mistakenly or intentionally – it is important to consult with a knowledgeable Atlanta wage and hour attorney immediately. You may be missing out on significant amounts back pay and overtime wages that you are entitled to.

Continue reading "State And Federal Government Join Forces To End Employee Misclassification" »

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" »