Written by attorney Howard Evan Skolnick

Wage & Hour Cases

Did you know you may be owed thousands of dollars? Millions of hard-earned dollars are lost to employees each year due to employer violations of wage laws. Many employers, either intentionally or through ignorance of the law, fail to pay their employees at the appropriate rate of pay for all hours worked.

Have you been shortchanged by your employer for time worked? You could be owed thousands!

A potential maximum recovery could, go back 2 years from date suit is filed on your claim, 3 years if the violation was intentional, and then liquidated damages doubles the amount, plus attorney fees.

The Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments. Effective January 1, 2015, the minimum wage in Ohio for covered nonexempt workers is $8.10 per hour. Overtime pay at a rate not less than one and one-half times the regular rate of pay is required for all hours worked over 40 in a workweek.

The FSLA is likely the most important legislation ever written to protect workers and is also the most violated employment law in the nation!

Some employers attempt to skirt the overtime requirements of the law by misclassifying employees as “exempt” when they are not exempt, and entitled to overtime pay for all hours worked above 40 in a workweek. Employer misclassifications are common. Please contact us to discuss the specific details of your situation.

Take a look at the following Questions and Answers to see if they may apply to your situation: Q: I am on salary and don’t get overtime pay because I’m an administrator, but it seems unfair to me. Other people in my office have the same job duties and they get overtime. How come I’m not getting overtime pay for the extra hours I put in?

A: The FLSA has three main “exempt” classifications for which employees are not entitled to overtime pay: i) executive, ii) professional, and iii) administrative. For your employer to properly classify you as exempt under any of these exceptions, in performing your job duties you must exercise independent skill and judgment on matters of significance, have discretion on how you perform your job duties, supervise at least 2 or more employees and have authority to hire and fire. To qualify as an exempt executive, administrative or professional employee an employee must be compensated on a salary basis at a rate of not less than $455 per week, which sum is not subject to deductions or subject to reduction because of variations in the quality or quantity of the work performed. An improper deduction to a salaried employee’s pay can convert the employee into an hourly employee and entitle her to overtime pay for all hours worked over 40 in a workweek. Employer misclassifications are common. Schedule a free consultation with me to review your specific situation.

Q: I’m a secretary and I get a 45 minute lunch break every day. I usually stay at my desk and answer phones during my break. Should I be getting paid for this time?

A: Yes. If an employer “suffers or permits” an employee to work during a scheduled break period or at home, the employer is required to pay for the time worked by the employee.

Q: I’m a driver for a uniform company. I pick up and drop off uniforms. I’m paid a salary and work 45 hours a week because I have to do a lot of paperwork. My job title is account executive. Am I entitled to overtime pay?

A: Yes. The term “executive” means your primary duties are management, you supervise two or more workers, and you have authority to hire and fire. You’re not a true executive, and are entitled to overtime.

Q: I am a server for a big chain restaurant. We are not allowed to clock-in until the first customer is seated. While I am waiting to clock-in, I have to wash dishes and perform other cleaning duties. I only get server wages for the time I am clocked-in and I never get compensated for the non-server duties I perform off-the-clock. Is this legal?

A: No. You must be paid for all hours worked at the appropriate rate. You should be getting paid at least minimum wage for the non-server duties that you perform before you begin your server duties. You may receive server wages only while you are performing server duties, provided that the tips that you earn bring your server time to at least minimum wage.

It is also illegal for the employer to require tipped employees to share any portion of their tips with non-tipped managers. This applies to mandatory “service fees” or “gratuity charges” as well.

Q: I recently started working at a new job. After two weeks, I noticed that I wasn’t getting paid overtime. When I asked my boss why I was not getting overtime, he told me that I had signed a waiver when I started working, and that he didn’t have to pay me overtime. Is he right?

A: No. Employers are not permitted to have their employees sign contracts that violate the law. Your employer is not allowed to have you waive your right to be paid for all hours worked at the appropriate rate. Private agreements, including union contracts, cannot deny employees compensation guaranteed to them by state and federal labor laws.

Q: I am a telemarketer. I log onto a computer that keeps track of the time I spend on the phone every day. I only get paid for the time I spend making calls. If I leave my desk during the day, I lose pay for the time I’m not on the phone. When we have staff meetings, all of us are required to log off our computers and we don’t get paid. Is this legal?

A: No. Employees are to be paid for all hours worked. If you are away from your desk and are performing job related tasks, you must be paid for that time.

Q: I work at a food processing plant as a line production worker. I have to wear a special sanitary uniform to do my job. It takes me around ten minutes to change from my street clothes into my work clothes, and then ten minutes after my shift to change back into my street clothes. Should I be getting paid for this time?

A: Yes. The law requires that employers pay employees for this time because it is required by the employer and for the employer’s benefit.

Q: I get two 15 minute breaks every day. I have to punch out for them and I don’t get paid. Is this legal?

A: No. All breaks under twenty minutes must be compensated. Employers frequently violate this law either deliberately or because they are not aware that the law requires that breaks under twenty minutes be paid.

Employees Most Often Subject To Wage and Hour Violations

Telemarketers Secretaries Bookkeepers Delivery drivers Tipped employees Retail managers Maintenance personnel Construction workers Waiting Time Travel Time

The FLSA encourages employees to band together and make a collective claim for unpaid wages. The law has strict non-retaliation provisions, and prohibits employers FROM RETALIATING AGAINST EMPLOYEES WHO ASSERT THEIR RIGHTS TO RECEIVE PAYMENT FOR ALL HOURS WORKED. RETALIATION IS A CRIME AND CAN BE PUNISHABLE BY UP TO SIX MONTHS IN JAIL AND $10,000 IN FINES.

Great news for workers! The United States Supreme Court ruled in favor of workers and against Tyson Foods Inc.

On March 24, 2016 the United States Supreme Court held in Tyson Foods, Inc. v. Bouaphakeo et al., that workers had to be paid for time they spent putting on protective work clothes and equipment before arriving at their work stations and wielding sharp knives while doing their jobs and paid for taking off that protective clothing and equipment after their shifts. The plaintiffs, workers at an Iowa pork-processing facility, alleged that the donning (“putting on”) and doffing (“taking off’) protective clothing were integral and indispensable to their hazardous work and that Tyson’s policy not to pay for those activities denied them overtime compensation required by the Fair Labor Standards Act of 1938 (FLSA). The Court agreed with plaintiffs reaffirming that the FLSA requires employers to pay employees for activities that are “integral and indispensable” to their regular work, even if those activities do not occur at the employee’s workstation. The company challenged an almost $5.8 million class action judgment in a case won by workers who contended they were underpaid for time spent donning and doffing, which deprived them of overtime pay. Because Tyson failed fulfill its legal duty to keep accurate records of the donning and doffing time, the Supreme Court’s majority opinion said that the workers should not suffer because the company failed to fulfill its mandatory duty under the FLSA to keep accurate records of that time, and the workers were allowed to use a representative sample of workers’ time spent donning and doffing to establish liability for the class.

A Victory for Home Health Care Workers On August 21, 2015, the U.S. Court of Appeals for the D.C. Circuit handed a victory to the Obama administration, ruling that the Department of Labor could make the almost two million home health care workers eligible for the minimum wage and overtime pay. The three-judge panel on the federal court of appeals reversed the decision of a lower court, stating that the administration’s move was within the powers of the Fair Labor Standard Act (FLSA). “The department’s decision to extend the FLSA’s protections to those employees is grounded in a reasonable interpretation of the statute and is neither arbitrary nor capricious,” Judge Sri Srinivasan wrote in the opinion of the court. The case centered on the Labor Department’s decision in 2013 to change the definition of “domestic service employment” and “companionship services.” The new definition stated that third-party employers must pay overtime if a domestic service employee is hired to provide companionship services to elderly and disabled individuals unable to care for themselves. Previously, the third-party employers had been exempt from those rules.

Cable Installers Prevail in Court March 2, 2016, the Federal 6th Circuit Court of Appeals decided Monroe, et. al., on behalf of themselves and others similarly situated v. FTS USA, LLC, et al. (6th Cir. 2016). In this case, the Court cemented the broad remedial power the FLSA grants to workers to organize themselves collectively to bring a collective action. Quoting the 1938 preamble of the FLSA, the Court stated: “Congress passed the FLSA with broad remedial intent to address ‘unfair method[s] of competition in commerce’ that cause ‘labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.’” In Monroe, the plaintiffs were cable installer technicians and alleged that FTS implemented a company-wide time-shaving policy that required its employees to systematically underreport their overtime hours. Managers told or encouraged technicians to underreport time or even falsified timesheets themselves. To underreport overtime hours in compliance with FTS policy, technicians either began working before their recorded start times, recorded lunch breaks they did not take, or continued working after their recorded end time. FTS's time-shaving policy originated with FTS's corporate office. Technicians testified that the time-shaving policy was company-wide, applying generally to all technicians, though not in an identical manner. Importantly, the Court held that the even though employees who were cheated out of overtime in three different ways they were nevertheless “similarly situated” and could proceed collectively because they were all victims of FTS's company-wide time-shaving policy to avoid paying overtime. The Court explained the consequences of an employer failing to keep accurate records of employees' time worked. Stating that once the employee produces “credible evidence” that they had performed work for which they were improperly compensated, the burden then shifts to the employer to show that they did not violate the Act.” The end result of this burden shifting standard is that if an employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate. The case was sent back to the district Court to make a final damage calculation. ¬¬

What type of actions by employers should be looked into? The US Department of Labor has a list of Frequently Asked Questions on this issue:

Wage and Hour Division (WHD) Questions and Answers About the Fair Labor Standards Act (FLSA)

WAGES, PAY AND BENEFITS Is extra pay required for weekend or night work? Extra pay for working weekends or nights is a matter of agreement between the employer and the employee (or the employee's representative). The FLSA does not require extra pay for weekend or night work. However, the FLSA does require that covered, nonexempt workers be paid not less than time and one-half the employee's regular rate for time worked over 40 hours in a workweek. How are vacation pay, sick pay, holiday pay computed and when are they due? The FLSA does not require payment for time not worked, such as vacations, sick leave or holidays (Federal or otherwise). These benefits are matters of agreement between an employer and an employee (or the employee's representative).

OVERTIME AND WORK HOURS When is overtime due? For covered, nonexempt employees, the FLSA requires overtime pay at a rate of not less than one and one-half times an employee's regular rate of pay after 40 hours of work in a workweek. Some exceptions to the 40 hours per week standard apply under special circumstances to police officers and fire fighters employed by public agencies and to employees of hospitals and nursing homes. Some states have also enacted overtime laws. Where an employee is subject to both the state and Federal overtime laws, the employee is entitled to overtime according to the higher standard (i.e., the standard that will provide the higher rate of pay).

RECORDKEEPING AND NOTICES Are pay stubs required? The FLSA does require that employers keep accurate records of hours worked and wages paid to employees. However, the FLSA does not require an employer to provide employees pay stubs.

DAY LABORERS Minimum Wage You must be paid at least the federal minimum wage for all hours worked regardless of whether you are paid by the hour, the day, or at a piece rate. Some state laws provide greater employee protections; employers must comply with both. Hours Worked A worker must be paid for all work performed whether or not the employer approves the work in advance. In general, “hours worked” includes all time an employee must be on duty, or at the place of work. Normally, time spent in training, traveling from site to site during the day and doing repair work must be paid. Overtime Normally, you must receive time and one-half of your regular rate of pay after 40 hours of work in a 7-day workweek. Recordkeeping Records must be kept of all wages paid and of all hours worked, regardless of where the work is performed. You should keep a record of your employer’s name, address, phone number and the hours you worked. What can I get if I make a claim for back wages?

Damages available under the FLSA include past wages, attorney fees and "liquidated damages," which can double the amount of recovery. This usually applies for two years back, but can apply for as far as three years back. Should I be paid for breaks or my lunch time? The Department of Labor generally holds that if a break is less than 20 minutes, the time is paid. A lunch break of 30 minutes must be provided when working five hours or longer and does not have to be paid time if the employee has no duties during the break time. Should I be paid for the time I travel for work? Generally, you should be compensated for travel time conducted for work during work hours, but not for ordinary home-to-work travel. What is considered "work time" which I can be paid for? Any activity which an employee performs that benefits the employer is usually counted as work time. This includes activities such as store meetings prior to opening, set-up and take-down of equipment or materials, or taking work home. Training is also counted as work time unless the training is held outside normal work times, completely voluntary, not directly related to his or her job and no work is performed during the time. When must overtime be paid? Overtime must be paid on the regular payday for the pay period covered and typically in cash. Compensatory time or payment of overtime with other "non-cash" items is not acceptable.

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