NATIONAL COMPLEX LITIGATION LAWYERS ENFORCING WORKERS’ RIGHTS
Our great country was built on the backs of hard-working men and women. Workers toiled for long hours in deplorable, unhealthy, and unsafe conditions for low pay while company owners and their stockholders got rich. Company owners forced their employees to work long hours without breaks. The workweeks far exceeded the traditional notion of forty hours, and overtime pay was a figment of the average employee’s imagination.
Parker Waichman LLP Represents Workers Who Have Been Denied Wages and/or Overtime Pay by Their Employer
THE FEDERAL FAIR LABOR STANDARDS ACT (FLSA)
As recently as 80 years ago fair labor compensation did not exist. However, in 1938, the U.S. Congress enacted the Fair Labor Standards Act (FLSA). President Roosevelt signed the Bill into law. The FLSA established the federal minimum wage, overtime rules, rules for non-traditional wage earners such as those who received tips, commissions, and those paid by piece work. Congress subsequently passed legislation which tempered the wide-ranging effect enacting FLSA had on businesses. Notwithstanding, FLSA came to the rescue of many workers who worked very long hours at the same rate of pay. Companies often abused these employees, and the FLSA leveled the playing field for them.
Despite the FLSA being in effect for almost 80 years, companies are still trying to get out from under the Act’s mandate. At Parker Waichman LLP, a national law firm, our complex litigation attorneys have extensive experience fighting for the rights of individuals whose employers fail to pay them the compensation they deserved under the FLSA. Our complex litigation attorneys have successfully represented numerous clients in minimum wage and overtime claims.
Every employee is entitled to be compensated for the time they spend at work. Employers must understand that this is a two-way street. The workers come to work and perform the job functions prescribed and, in consideration for the worker’s efforts and time spent on the job, the employer must pay at least the federal minimum wage (although many states impose a much higher minimum wage requirement) and pay for overtime. If your employer has failed to meet the standards imposed on them by the FLSA, Parker Waichman LLP can help.
HOW IS WORK TIME DEFINED UNDER THE FLSA?
The FLSA is a lengthy and complicated piece of legislation. Additionally, hundreds of pages of federal regulations and a number of cases decided in U.S. courts, including the U.S. Supreme Court, intertwine to create a comprehensive statutory scheme. It is important to note that the FLSA gives the U.S. Department of Labor the authority to enact rules and regulations that help breathe life into the FLSA. An employer must follow the regulations as well as the statute.
Despite its seemingly convoluted structure, the definition of work time is relatively straightforward. Under the FLSA, work time is the time spent “on the clock” as well as time spent, in addition to your regular work hours, attending meetings, complying with training requirements, or at your workplace preparing to perform your job. A violation of FLSA may occur where you employer refuses and fails to pay you for the time you spend at your job performing the tasks associated with your position.
HOW DOES THE FLSA DEFINE OVERTIME?
Almost all employees have a right to overtime pay under the FLSA for working longer than forty hours per week. That means hourly employees, salaried employees who make less than the statutory threshold, commissioned employees, and piecework employees have the right under the FLSA to receive overtime. The overtime rate is one and one-half times the employee’s hourly wage for every hour worked beyond forty during a work week.
There are a few types of employees who are exempt from the overtime rules. Executives, salaried employees making more than the statutory threshold, professionals such as doctors, lawyers, and accountants, and seasonal employees are exempt from the FLSA overtime rules. The determining factor is not whether you receive a salary from your employer, but your job description and duties are determinative. Furthermore, workers who are paid $455 per week or $23,500 or less per year automatically qualify for overtime pursuant to the FLSA, without regard for the type of job performed and the position held by the employee.
There is another vital aspect of the FLSA overtime rules about which workers must be aware. The FLSA prohibits every employer from refusing to compensate an employee who is performing any task on behalf of the employer. In other words, no employer can make you work for free. Preparation time is included in this prohibition. Preparation time is any time an employee spends getting ready for their job while on site. Some examples of preparation time involve putting on protective gear and clothing or changing into an employer-mandated uniform. This rule is limited to where the preparation takes place. Essentially, if the uniform or protective equipment is stored at the employment site and the employer requires employees to prepare for work by getting into protective gear or a uniform before starting work, then the employer must pay for that preparation time.
Hourly time includes more than the time at a workstation or preparation time. Any time the employee spends in training or at meetings relating to their job or for the benefit of the employer counts toward the forty-hour work week. Also, break times count toward the forty hours, but employers do not have to pay an employee for a lunch period or any break that exceeds twenty minutes. It must be noted that all states have their own rules relating to minimum break requirements and compensation obligations. Also, many states have a federal minimum wage law that exceeds the federal minimum. This is one of the rare instances where state law pre-empts federal law, meaning that the state minimum wage law applies.
WHAT IS A WAGE UNDER THE FLSA?
Right now, the federal minimum wage is $7.25 per hour. That hourly rate has been the same for almost ten years, and it should change. Notwithstanding, if the minimum wage imposed by the state law in the state in which the employee is working is higher than the federal minimum wage, then the state minimum wage applies.
Employees who count on tips and gratuities are not exempt from FLSA. Workers who typically receive tips are waiters, waitresses, bartenders, busboys, as well as other food and drink servers. Under FLSA rules, employees who work for tips must receive an hourly wage but may be lower than the federal minimum wage depending on the state in which the employee works. The employer must make up the difference between the hourly wage and the minimum wage if tips do not make up the difference.
INDEPENDENT CONTRACTORS EXEMPT FROM FLSA
An independent contractor is frequently known as a “1099” worker. They are not employees of the company. Instead, the 1099 worker is self-employed. 1099 is an income taxation designation as defined by the Internal Revenue Service (IRS), and there are complicated rules that apply to determining whether a worker is an employee or an independent contractor.
Knowing if you are an independent contractor or employee is vital to assessing whether you have a viable claim for unpaid wages under the FLSA.
According to the IRS, an independent contractor may be defined as:
- a person who works at his or her own direction and not at the discretion of the company or the company declines to exert financial control over the worker, and
- the worker and the company explain their relationship in terms of an independent contractor relationship.
The IRS looks deeper into the facts of each situation than relying on pure definitions. To determine whether the company is exerting control over the worker, the IRS investigates:
- Whether the company instructs the worker when and how to perform the job, and where the task may be completed;
- The financial agreement between the parties;
- Whether the worker makes his or her services available to the broader market; and
- If there is an opportunity for the worker to experience a financial gain or loss depending on the financial success of the company.
In looking at how the parties define their relationship, the IRS asks:
- If there is a written contract between the parties, and if so, how does the agreement describe the worker’s status;
- If the worker receives benefits that an employee would traditionally receive from his or her employer such as health benefits, opportunity to contribute to a pension plan, and the opportunity to accumulate sick and vacation time;
- The duration of the relationship. A written contract might stipulate the length of the work to be performed or if it is open-ended; and
- If the services performed by the worker are fundamental to the on-going business of the company.
The answers to these important questions will help the IRS determine whether the worker is an independent contractor or an employee.
CHILD LABOR AND THE FLSA
Before the FLSA became law, children would work in factories and on farms to help the family earn money. It was an all-hands on deck philosophy and children had to work so the family could make enough money to survive. After the FLSA was passed, children under 14 years of age were prohibited from working. Now, the FLSA limits the number of hours and times 14 and 15-year-old children can work. The statute also establishes the total number of hours a child of 14 or 15 is permitted to work while school is in session and when out of session. Additionally, the FLSA dictates the conditions in which a child can work. The goal of the FLSA is to make sure that children who work do so in a safe and healthy environment without compromising or interfering with the child’s ability to receive a formal education. The Act does not limit the time and places where a child 16-years-of-age or older can work.
All states have enacted child labor laws. In addition, every state has compulsory school attendance laws, the minimum age for driving and other child safety laws. If any of those laws conflict with the federal standard, then the stricter rule will apply. It is essential to note that the FLSA does not apply to agricultural jobs. However, other laws might apply to agricultural workers which are beyond the scope of this discussion.
ADDITIONAL REQUIREMENTS OF THE FLSA
The FLSA has very stringent rules that work in an employee’s favor to protect them. At times, they seem onerous or burdensome to employers, but the refusal or failure to follow the law will be even more burdensome. The FLSA obligates an employer to display posters informing the employees in simple, straightforward terminology about the minimum wage, the number of hours a person younger than 18-years-of-age may work, and the potential fines that could be imposed on the employer for failing to comply with the law.
In addition, employers must display posters that inform employees about their health and safety and provide contact information for agencies which govern those issues. Posters may also contain a list of other rights of which employees need to be aware.
WHAT IS A VIOLATION OF AN EMPLOYEE’S RIGHTS UNDER THE FLSA?
An employee who believes they were aggrieved by their employer’s actions under the FLSA can file a claim with the lawyer that they choose. Violations of an employee’s rights to fair wages and labor standards are:
- Refusing to pay the employee for time spent on the worksite preparing for work;
- Not paying for time spent waiting for software to boot or computers to work when those computers are used for calculating and keeping employee time;
- Refusing to compensate the employee for receiving work-related calls after hours;
- Not paying an employee overtime when their work week exceeded forty hours;
- Not compensating the employee for breaks as required; and
- Not paying the appropriate overtime rate.
Employers will run afoul of the FLSA if they try to avoid these obligations by classifying an employee as an independent contractor. An employer is liable for damages if the employer treats the worker as an independent contractor despite being an employee. Also, an employer cannot give a title to a worker or define the employee’s role in such a manner that avoids the requirements of the FLSA. As discussed above, executives and professionals are exempt from the FLSA rules. However, calling an administrative assistant an executive to avoid the application of the FLSA is a violation of the law and will result in the imposition of hefty fines and penalties. Furthermore, an employer cannot avoid paying overtime by claiming that the employee never received permission from the employer before working extra time.
Employees who receive tips as a component of their compensation may file a claim under the FLSA if someone believes that their employer failed to compensate them correctly. For example, an employee who receives tips is not required to share the pool of tips with the other workers who do not customarily receive tips. A gratuity is strictly the employee’s money. It cannot be shared with the employer.
THE CLAIMS PROCESS
The Wages and Hours Division of the Department of Labor is responsible for handling complaints made by employees under the FLSA. They try to make the process simple for employees. You can submit a claim in writing to your nearest Department of Labor, Wage and Hour Division office; you can call their toll-free number at 1-866-487-9243 or visit their website at www.dol.gov/whd/. The following is information you will need to provide the Wage and Hour Division investigators:
- Your name
- Your correct address and telephone number
- The name of the company you allege committed the violation
- The location of your employer, which could be the location at which you worked or at the corporate headquarters
- Telephone number for the company
- Your manager’s name
- Your job description
- How often you were paid and
- Any other information you believe is critical for the Wage and Hour Division to investigate your claim.
It is also helpful to thoroughly document your claim. You should submit paystubs, timesheets, overtime sheets, time-in and time-out records, and any other record that you think will help substantiate your claim. It is important to understand that the Wage and Hour Division welcomes complaints made on behalf of someone else, that is an attorney can submit a claim for you.
HOW CAN AN ATTORNEY HELP ME FILE A COMPLAINT UNDER THE FLSA?
An Overtime / Unpaid Wages Law Attorney who has extensive experience fighting for workers’ rights under the FLSA, like those who work with Parker Waichman LLP, can help you build a strong case against your employer. You should be cognizant that your employer cannot take any adverse action against you for asserting your rights. Therefore, you should rest assured that obtaining counsel and vigorously pursuing the wages you are owed should not be detrimental to your ability to maintain employment.
An attorney can help you assemble documents and help you interpret finer points of law. Additionally, a lawyer familiar with the FLSA can perform legal research to answer questions which might not be as clear-cut. Not only will your lawyer make a persuasive case for you so you can recover every dollar your employer owes you, but your lawyer can also defend against your employer’s attempts to discredit or disparage you in the eyes of the investigators of the Wage and Hour Division of the Department of Labor.
WHAT IS THE INVESTIGATIVE PROCESS LIKE?
The investigator assigned to investigate your complaint will keep your complaint confidential. The investigators are trained at reviewing records and interviewing witnesses so that they know where to look for certain information and how to obtain other pieces of information which will guide them in making their decision. A typical investigation follows this general outline:
- The investigator will determine whether the FLSA applies to the employer or whether the employer is exempt from application of the FLSA by reviewing revenue documents and other documents relating to the nature of the business in question;
- The investigator will review payroll documentation, overtime pay slips, employee time sheets, and pay stubs;
- The investigator may interview witnesses, particularly those in the payroll department; and
- The investigator will speak with executives, managers, and their representatives to discuss resolutions of the dispute if the investigator determines that the employer violated the law. The investigator can demand that the employer pay overtime and wages due to the employees who have made a complaint.
- If the employer refuses to pay or the investigator determines that you do not have a claim, you can bring a lawsuit in the U.S. District Court having jurisdiction over your claim.
WHAT CAN I RECOVER FROM A SUCCESSFUL CLAIM UNDER FLSA?
If you are successful in bringing a claim against your employer, you can receive your back pay, overtime pay, and liquidated damages. The statute also authorizes you to collect attorneys’ fees and costs associated with pursuing legal action. Your employer might be assessed fines which will go to the government.
STATUTE OF LIMITATIONS
The FLSA does not require you to make a claim while you are working for the offending employer. However, you must be aware of the two-year statute of limitations. If you do not file a claim in court before then, you will lose out on your claim forever.
“The FLSA allows the Department of Labor (“Department”) or an employee to recover back wages and an equal amount in liquidated damages where minimum wage and overtime violations exist. Generally, a two-year statute of limitations applies to the recovery of back wages and liquidated damages. A three-year statute of limitations applies in cases involving willful violations.”
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