FLSA Employment Violation
FLSA Employment Violation Lawsuit
Has your employer violated the federal Fair Labor Standards Act (FLSA) by failing to pay you overtime or other rightfully earned wages? Under the FLSA, most employees have a right to be paid for all hours "suffered or permitted to work." Working extra hours, time spent at your place of employment preparing for work, and attending mandatory trainings sessions and meetings is often considered "work time." The FLSA also requires that employees, even tipped employees, be paid at least a minimum wage. Unfortunately, many companies attempt to find ways around these pay requirements, often resulting in violations of the FLSA. If your employer has failed to pay you minimum wage, overtime, or for all hours worked in violation of the FLSA, you may be entitled file an FLSA lawsuit to collect back pay and other damages.
Lawyers at Parker Waichman LLP who limit their practice to employment law offer free lawsuit evaluations to any employee denied their rightful pay. Our employment lawyers also offer free lawsuit evaluations to workers whose rights under the federal Family Medical Leave Act (FMLA) or the federal Migrant and Seasonal Agricultural Worker Protection Act have been violated by their employers. To learn more about filing an FLSA lawsuit, or other employment claim, please contact the employment lawyers at Parker Waichman LLP today.
Worker rights groups and other experts believe there are likely thousands of workers who are not aware of protections to which they are entitled under wage laws.
The Fair Labor Standards Act, or FLSA, was enacted in 1938, and has protected workers' rights for more than 70 years. Under the FLSA, covered employees have minimum wage protections as well as rights to receive overtime compensation for hours worked over 40 hours in a workweek. Key provisions of the FLSA include:
Overtime Pay: Most employees, whether they are hourly, commissioned, salaried, or piece rate workers, have the right to receive overtime compensation under the FLSA. Under the FLSA, employees must be paid one and one-half times their “regular rate” of pay for all hours worked in excess of 40 during an individual work week. Some workers, including executives, professionals, and seasonal employees are exempt from overtime pay. However, being paid a “salary” does not exempt an employee from overtime pay; rather, job duties determine an exemption. In fact, employees who are paid less than $23,600 per year ($455 per week) are automatically entitled to overtime pay, regardless of their jobs or whether their pay is considered a salary.
Working Off the Clock: Under the FLSA, your employer must pay you for all hours worked, and cannot require that you work "off the clock." For example, if you have to change into a uniform and personal protective equipment that is kept at your place of work prior to starting your job, your employer must pay you for that preparation time. Likewise, if you are required to attend mandatory training sessions or meetings at off hours, you must be paid for that time. By law, your employer must also pay you for breaks under 20 minutes.
Minimum Wage: Under the FLSA, all non-exempt employees must be paid at least the minimum wage. As of July 24, 2009, the federal minimum wage is $7.25 per hour. However, some state laws may have higher minimum wage requirements.
Tipped Employees: Special rules apply to the minimum wages and overtime pay paid to employees working as tipped employees, including servers, waiters, bartenders, or busboys. Tipped employees may be paid $2.13 per hour; if an employee's tips combined with the cash wage does not equal the applicable minimum wage, the employer must make up the difference.
Independent Contractors: An "independent contractor," also sometimes known as a "1099 contractor,” is a legal and tax-related term used in the U.S. to refer to a worker who contracts his or her services out to a business or businesses. An independent contractor is not an employee of the business or businesses with which he or she works, instead he or she is considered to be self-employed. Generally, to be legally classified as an independent contractor under the FLSA, the contractor must have the right to control the manner and means to do his or her work, provide his or her own tools and equipment, and establish his or her own work schedule.
Youth Employment: The FLSA also regulates the employment of youth with respect to the type of work they can perform and their wages. As a general rule, the FLSA sets 14 years of age as the minimum age for employment and limits the number of hours worked by minors under the age of 16.
Record Keeping: The FLSA requires employers to display an official poster outlining the requirements of the FLSA. Employers must also keep employee time and pay records.
Typical FLSA Violations
If a worker believes his or her employer has violated the FLSA, he or she may bring a lawsuit for back pay and an equal amount as liquidated damages, plus attorney's fees and court costs. There are many ways employers can violate the FLSA. These include:
- Miclassifying workers as independent contractors. Workers most vulnerable to this type of FLSA violations include: cable installers, construction workers, utility workers, tech workers, and janitors.
- Misclassifying a non-exempt employee as an exempt employee (for instance, by miscategorizing workers as executives, administrators, professionals, outside sale persons, or independent contractors).
- Failing to pay workers for time spent at their workplace for donning required uniforms, equipment, or safety gear.
- Failing to pay employees for time spent waiting for computers to boot up/shut down when log-in/out time-keeping software is used.
- Failing to pay workers for using smart-phones for work-related communications that require action.
- Failing to pay for an employee's time spent traveling between job assignments.
- Failing to pay an employee for work performed at home or off the work-site that is unreported.
- Giving time off in lieu; compensatory time; or comp time to private sector workers (a type of work schedule arrangement that allows workers to take time off instead of, or in addition to, receiving overtime pay).
- Failure to calculate commissions and bonuses in the overtime pay rate.
- Failure to pay the proper overtime rate for work over 40 hours/week.
- Failure to pay state-mandated rest breaks.
- Failure to provide required meal periods.
- Failure to provide earned wages and vacation time within 24 hours of termination.
- Pooling Tips: Tip splitting or tip pooling arrangements only permitted among employees who customarily and regularly receive tips such as waiters, waitresses, servers, bellhops, counter personnel (who serve customers), busboys/girls, and service bartenders. Tipped employees may not be required to share their tips with non-tipped employees, for example with dishwashers, cooks, expediters, chefs, and janitors.
- Tip Retention: A tip is the sole property of the tipped employee. Thus, the restaurant cannot keep of part of a server's tips.
- Telling employees that they are not entitled to overtime for various improper reasons. For example, that that they receive permission or approval in advance, that they are paid on a salaried basis, etc.
Other Employment Violations
The employment attorneys at Parker Waichman also offer free legal consultations to employees who have been victims of other employment violations, including those covered by the U.S. Family Medical Leave Act (FMLA) and the U.S. Migrant and Seasonal Agricultural Worker Protection Act. The FMLA provides certain covered employees with up to 12 weeks of unpaid, job-protected leave per year. It also requires that group health benefits be maintained during the leave. To be eligible for FMLA leave, an employee must work for a covered employer; have worked for the employer for a total of 12 months, have worked at least 1,250 hours over the previous 12 months, and work at a location in the United States or in any territory or possession of the United States where at least 50 employees are employed by the employer within 75 miles. Situations covered by the FMLA include:
- The birth and care of an child.
- The placement and care of a child for adoption or in foster care.
- The serious health condition of the employee or a spouse, child or parent.
- Qualifying exigencies arising out of a covered military member’s National Guard or Reserve military service.
The U.S. Migrant and Seasonal Agricultural Worker Protection Act (MSPA) provides employment-related protections to migrant and seasonal agricultural workers. These protections, however, do not apply to individuals who are independent contractors rather than employees. Under this law, every non-exempt farm labor contractor, agricultural employer, and agricultural association must:
- Disclose the terms and conditions of employment to each migrant worker in writing at the time of recruitment and to each seasonal worker when employment is offered, in writing if requested.
- Post information about worker protections at the worksite.
- Pay each worker the wages owed when due and provide each with an itemized statement of earnings and deductions.
- Ensure that housing, if provided, complies with substantive federal and state safety and health standards.
- Ensure that each vehicle, if transportation is provided, meets applicable federal and state safety standards and insurance requirements and that each driver be properly licensed.
- Comply with the terms of any working arrangement made with the workers.
- Make and keep payroll records for each employee for three years.
FLSA Violations Impacting Oil and Gas Industry Workers
Day rate gas and oil workers may include Directional Drillers, Field Coordinators and Engineers, Field Office Clerks, Landmen, Pump and Lease Operators, Pipeline Inspectors, Service Supervisors, Tool Pushers, and Water Truck Drivers, as well as workers who measure and log while drilling. These workers may work for firms that are involved in fracking operations in Alabama, Colorado, the Eagle Ford and the Marcellus Shales, New Mexico, North and South Dakota, Oklahoma, Texas, Utah, and Wyoming.
FLSA violations impacting oil and gas workers typically include unpaid overtime for laborers who work more than 40 hours per week, but who do not receive overtime pay. Oil and gas workers may be able to recover unpaid overtime for up to three years by filing a class action lawsuit and many lawsuits have been brought against oil and gas companies over alleged violations of federal overtime laws and the failure to compensate day rate employees for overtime hours worked. Of note, should a day rate worker choose to take legal action, his/her employer is legally prohibited from retaliation against that worker.
Day rate workers receive payment via a flat, pre-determined rate for each day worked. The amount of time spent at a job site is often not considered; therefore, the way in which worker pay is determined may be in violation with federal and state labor laws should an employee work more than 40 hours per week and not receive overtime pay.
Recently, oil and gas workers who have worked in the hydraulic fracturing (fracking) industry have brought numerous class action lawsuits against employers to receive compensation for overtime hours for which they were not paid. Allegations include that oil and gas companies compensated day rate workers with a flat day rate but, in some cases, also mandated these workers to work more than 40 hours in any given week. Federal wage and hour laws mandate that many oil and gas day rate workers must be paid time-and-a-half for any time they worked in excess of 40 hours in any given work week. There are some exceptions to these federal requirements; however, these exceptions are very restrictive and, for the most part, do not apply to oil and gas day rate workers.
U.S. Department of Labor Investigations Involving Potential Oil and Gas Worker Violations
A ProPublica review of U.S. Department of Labor (DOL) investigations found that oil and gas workers who typically work in high-risk environments may be underpaid because of questionable accounting techniques that ensure these workers do not receive medical leave and unemployment insurance benefits. The probes have concentrated on so-called “worker misclassification," an accounting ploy in which full-time employees are classified as independent contractors who are paid hourly wages, but who may not receive these benefits. According to investigators and some experts, this is a growing trend meant to lower costs.
According to ProPublica, as the oil and gas industry grows, many daily operations conducted on oil and gas rigs are sub-contracted to smaller businesses. In fact, it is not unusual for an array of companies to be hired to handle a number of jobs, such as well pad construction, well drilling, hydraulic fracking, and trucking water and chemicals for disposal. Despite the numerous, and different types of companies, and the thousands of workers, involved, just one, legal standard applies, but may not always be followed by employers: Employees must receive fair compensation for overtime hours worked.
In 2012, the DOL undertook a special enforcement initiative in its Northeast and Southwest regional offices that targeted the fracking industry and that industry’s supporting industries. By August 2014, the DOL had conducted 435 investigations that revealed that in excess of $13 million in back wages was due to more than 9,100 workers.
Injuries and Deaths may be Tied to Overworked Laborers
In the past decade, the oil and gas industry has significantly grown; employment has increased by over 30 percent. Meanwhile, the average employment in industries nationwide dropped by 2.7 percent between 2007 and 2012.
Annette Bernhardt, a scholar on low-wage work, conducted research that revealed that 84 percent of oil, gas, and mining industry workers were employed by contractors in 2012. According to ProPublica, at the same time, the industry has suffered from an increase in on-the-job deaths and injuries. While no evidence suggests these accidents are due to inadequate training or overworked laborers, other industries’ accounts reveal that heavily outsourced work suggests these significant risks may exist.
Legal Help for Victims of FLSA and Other Employment Violations
If you believe your employer violated the FLSA or other employment laws, you may have valuable legal rights, including eligibility to participate in a class action lawsuit to recover compensation for unpaid overtime or other owed wages and benefits. To learn more about the legal remedies available to you, please fill out our online form, or call 1-800-YOURLAWYER (1-800-968-7529) today.