To complete the employee-versus-independent-contractor classification process, one needs to understand what the laws governing the distinction between employees and independent contractors dictate. A recent unpaid overtime case before the 11th Circuit Court of Appeals offers a helpful reminder that classification status turns on economic reality, not simply the label the parties place on a worker.

The three plaintiffs in the case were insurance claims adjusters assigned to work claims in Texas in the aftermath of Hurricane Harvey. The client, a Texas insurance agency, contracted with a staffing firm to provide adjusters. The adjusters’ contracts with the staffing firm labeled them as “independent contractors.”

Many of the adjusters put in long hours. One adjuster asserted that he worked from 8:00 a.m. to 6:00 p.m. Monday through Friday and 8:00 a.m. to 5:00 p.m. Saturday and Sunday.

The adjusters ultimately sued in federal court in Alabama, alleging they were employees of the agency, not independent contractors, and were entitled to overtime compensation for hours worked in excess of 40 per week.

The trial court ruled against the adjusters, concluding that they were independent contractors. The 11th Circuit Court of Appeals, however, reversed that ruling.

The reason the appeals court sided with the adjusters was that, in its opinion, the trial court did not correctly apply the “economic reality” test for differentiating independent contractors from employees. In 2013, the 11th Circuit, in the case of Scantland v. Jeffrey Knight, Inc., put forth six relevant factors courts should use to guide their analysis of employee-versus-independent-contractor classification. The court also cautioned readers that the factors are mere guides and “no one factor dominates, and even the sum of factors should be rejected if they do not reflect the economic reality.”

Applying the Six’ Economic Reality’ Factors

The six factors the court put forward in the Scantland case were:

(1) the nature and degree of the hiring entity’s “control over the manner in which work is performed”,
(2) the worker’s opportunity for profit or loss;
(3) the worker’s investment in materials or hiring additional workers;
(4) whether the worker’s job requires a special skill;
(5) the permanency and duration of the relationship; and
(6) the degree to which the worker’s services are an “integral part” of the hiring entity’s business.

Breaking down each factor, the court explained that an alleged employer’s “control must be significant to support employee status.” Hallmarks of significant control include things like whether the alleged employer controlled pay rates, hours, and schedules, “in addition to whether the alleged employer closely monitored the quality of the work.”

Factor two examines how workers are paid. According to the court, the key to this factor is “whether the workers can earn additional income through their own initiative by negotiating a rate, selling additional goods or services, or similar methods.”

For factor three, courts should consider the relative investments of the worker versus the alleged employer by looking into which party provided the equipment and/or materials necessary to do the job. Factor four required an analysis of whether the job required the workers to possess any special skills. This can include things like specialized experience and/or licenses.

When it comes to factor five (permanency or duration of the relationship), the courts look at both the temporal aspect and exclusivity. Factor six requires, as the name suggests, courts to assess whether the work the workers performed was or was not “integral” or essential to the hiring entity’s business.

The court, applying the factors to the adjusters’ situation, found that five factors supported an employee status determination. The agency controlled the adjusters’ pay rates, hours, schedules, and many aspects of how they processed claims. The adjusters were paid a pre-set rate, meaning that they could not earn additional income through their own initiative.

Additionally, in reviewing factor three, the court noted that the insurance agency provided the adjusters with laptop computers, email accounts, online networks, and software applications for completing claims-processing tasks.

Furthermore, factors five and six favored employee status. The agency retained the adjusters for an indefinite period of time “akin to at-will employment.” By contrast, had the agency retained the adjusters for a specific duration — such as “the completion of a particular claim, a certain number of claims, or even all Hurricane Harvey-related claims,” factor five might have tilted toward independent contractor status. Finally, as required by factor six, the work was essential. The agency was an insurance entity in the business of paying or denying claims filed by its customers. Analyzing and adjusting those claims was vital to that business.

Only factor four favored independent contractor status, according to the 11th Circuit. The adjusters had specialized training and state-issued licenses. That reality weighed against employee status.

The outcome of the adjusters’ case shows that the economic reality analysis of employee-versus-independent-contractor classifications is complex and multifaceted, extending well beyond whether a worker is classified as an “independent contractor” in a hiring contract. If you have questions about employee-versus-independent-contractor classifications, get in touch with the knowledgeable Atlanta wage and hour attorneys at the law firm of Parks, Chesin & Walbert. Our team is highly experienced in handling these matters and can provide you with the reliable advice and effective advocacy you need. Contact us through this website or at 404-873-8048 to schedule a consultation today.

These issues are of keen importance to both employers and employees alike. An employer who deducts time from an employee’s total FMLA leave entitlement risks exposing itself to civil liability for FMLA interference. For employees, these issues are vitally important given the limited FMLA leave the statute provides (a maximum of 12 workweeks in a 12-month period).

Recently, the U.S. Department of Labor’s Wage and Hour Division fielded a question about short-term business closures and FMLA leave. The entity seeking clarification in this case was a school employer dealing with a closure of less than one week.

In answering the question, the division also highlighted additional scenarios in which a business might close on a weekday. For example, if a holiday fell on a weekday, the holiday generally “does not count against the employee’s FMLA leave entitlement.” That is not true, however, if the worker was scheduled and expected to work that holiday. In that case, the employee’s absence on that holiday would count against their total FMLA leave entitlement of 12 weeks.

Taking a Full Week of Leave Versus a Partial Week

For non-holiday closures, such as weather-related closures, the rules differ, and the outcome depends on whether the employee’s FMLA covered a whole week of leave or less than a week. Take, for example, a worker who has taken a full week (Monday-Friday) of FMLA leave, but their employer later closes on that Friday due to inclement weather. That weather-related closure has no impact on that worker’s leave calculation. The employer may still deduct a full week from the worker’s 12 weeks of FMLA leave, even though the employer’s business was closed on Friday and no one was required to report to work.

On the other hand, for workers who take less than a whole week, things are different. The division provided the example of an eligible employee who uses FMLA leave to cover absences every Tuesday afternoon for physical therapy appointments. If the employer closed on a given Tuesday due to inclement weather, the rules require the employer to deduct no time from the employee’s total FMLA entitlement.

The division’s letter also underscored that the rules of FMLA leave entitlement are the same regardless of whether the closure was planned or unplanned and that “the specific reasons for the temporary closure” do not matter in terms of calculating FMLA leave balances. Additionally, in a matter of particular interest to school employers and employees, whether an employer requires employees to report to work for a “make-up” day does not affect the rules for calculating FMLA leave.

If you have questions about the FMLA and FMLA leave entitlement, it is vital to get accurate answers. For the reliable information and advice you need, reach out to the experienced Atlanta FMLA leave attorneys at the law firm of Parks, Chesin & Walbert. Our team regularly handles client issues related to FMLA entitlement and eligibility. Contact us through this website or at 404-873-8048 to schedule a consultation today.

The U.S. Department of Labor recently published an opinion letter that examines in depth the issue of bonuses, regular rates of pay, and overtime compensation.

The employer in the letter was a waste management company, and the employees in question were its drivers. The driver earned a base salary of $12 per hour. In addition to their base pay, drivers could earn up to $9.50 per hour under the employer’s “Safety, Job Duties, and Performance” bonus plan. The bonus rewarded behaviors such as “punctuality, attendance, consistency in completing daily safety tasks, driving safety, compliance with traffic laws, proper attire, and performance efficiency.” If a driver met their performance targets during a particular pay period, then the bonus applied to all hours the driver worked during that period.

The employer’s question to the Labor Department was whether it could exclude those bonuses from the drivers’ “regular rate of pay” and, if it could not, how it must include the bonuses in calculating the drivers’ overtime compensation.

As an initial matter, the department concluded that the employer could not exclude the performance bonuses from the calculation of the drivers’ regular rate of pay. While Section 7(e)(3) of the FLSA allows employers to exclude specific bonuses “paid in recognition of services performed during a given period” from the calculation of an employee’s regular rate of pay, the employer may only do so if those bonuses are discretionary ones. Specifically, Section 7(e)(3) requires that three things be true for a bonus to qualify as discretionary. Those elements are:

1. The fact and amount of the payment must be “determined at the sole discretion of the employer.”
2. The employer’s determination must occur “at or near the end of the period” when the employee’s work was performed.
3. The payment must not be made “pursuant to any prior contract, agreement, or promise causing the employee to expect such payments regularly.

The drivers’ incentive bonuses clearly were nondiscretionary. The employer and the employees had an agreement that set forth the terms of the bonus program, including the amount a qualifying driver would earn and the criteria the driver must satisfy to receive the bonus. If a driver satisfied the requirements, they automatically earned the bonus, meaning the employer had abandoned its discretion to decide whether to award a bonus (and how much to pay) to a qualifying driver.

The department then explained how the bonus would affect a driver’s rates of pay. A driver who did not qualify for any bonuses would make $12 per hour in regular compensation and $18 per hour in overtime pay. A driver who qualified for the full bonus was entitled to have their regular rate of pay calculated as the base rate of $12 plus the $9.50 bonus, for a total of $21.50 per hour. That meant the time rate of compensation for a driver who qualified for the full bonus was $21.50 x 1.5, or $32.25 per hour.

Whether you are an employee who has earned bonuses or an employer that pays them, it is in your interest to ensure that you are including or excluding those bonuses correctly when it comes to paying overtime compensation. If you have questions, the experienced Atlanta wage and hour attorneys at the law firm of Parks, Chesin & Walbert are here and ready to provide you with thoughtful advice and practical solutions. Contact us through this website or at 404-873-8048 to schedule a consultation today.

The FMLA case of a public bus driver clearly highlights this issue.

The driver, I.W., had sickle cell anemia. The employer knew about the condition as the driver had disclosed it when the employer hired him in 2018 and discussed the disease with several of his supervisors.

The driver had issues with absenteeism during his employment. His attendance issues triggered at least two suspensions from work, and by July 2021, he had accumulated enough absence points that he was on the brink of termination.

On July 7, the driver experienced a sickle-cell flare-up that required him to seek hospital care. The driver told the dispatcher that he had to go to the hospital and also that he had no babysitter for his child. The dispatcher recorded the reason for I.W.’s absence as “no babysitter.” That resulted in the employer assessing two attendance points, leaving I.W. over the limit.

Later that same day, the driver submitted an FMLA leave application.

A subsequent flare-up forced the driver to return to the hospital on July 8. The employer ultimately approved a period of FMLA leave starting on July 7; however, because the employer assessed two points for July 7, it went ahead and fired the driver.

Subsequently, I.W. sued the employer for FMLA retaliation. The trial court sided with the employer, concluding that the driver did not provide sufficient notice to the employer of his need to take leave on July 7.

The Notice Requirement is Not a High Hurdle

The appeals court ruled that this was an error. As the appellate court explained, demonstrating adequate notice “is not particularly onerous.” Although merely “calling in sick” by itself may not be enough, the law does not require an employee to “expressly assert rights under the FMLA or even mention the FMLA” at all. In essence, any time an employee offers up “sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request” and “does so as soon as practicable under the facts and circumstances of the particular case,” he has met the notice requirement adequately to invoke his rights under the FMLA.

In I.W.’s case, he testified that he told the dispatcher that he had to go to the hospital. He then formally applied for FMLA leave later that same day, and the employer “granted his FMLA leave for a period covering his absence on July 7,” and made that decision before it executed the termination of the driver’s employment.

That evidence was a significant problem for the employer when it came to the FMLA retaliation claim, according to the court. Simply put, the employer “could not legally penalize [the driver] for an absence that became FMLA leave before his firing.”

Here, the employee’s notice consisted of little more than a same-day phone call stating “I have to go to the hospital,” followed by the prompt filing of FMLA paperwork a few hours later. As this case illustrates, employers should bear in mind that, potentially, that is enough to satisfy the notice requirement.

Do you have questions about the FMLA, FMLA interference, or FMLA retaliation? Count on the knowledgeable Atlanta FMLA retaliation attorneys at the law firm of Parks, Chesin & Walbert to provide you with helpful advice and powerful advocacy to protect your rights fully. Contact us through this website or at 404-873-8048 to schedule a consultation today.

The deputy, A.I., began working for the Richmond County Sheriff’s Office in 2020. Shortly thereafter, the deputy started working a special assignment at a local park. One of the other officers assigned to the detail was E.J., a lieutenant and the commander of the SWAT team, which A.I. hoped to join.

According to the deputy and others, the lieutenant frequently made racist remarks related to the deputy’s ethnicity (Arabic) and national origin (Iraqi), including crude comments about terrorism, bombs, sand, and A.I.’s English language proficiency.

In 2021, the deputy filed an internal affairs complaint detailing the lieutenant’s harassment. Eight days later, the sheriff’s department fired the deputy.

Subsequently, the deputy filed a federal lawsuit alleging that he was fired in retaliation for the harassment complaint.

‘Convincing Mosaics’ and the Case of McDonnell Douglas v. Green

In a retaliation case like this one, the plaintiff may succeed in one of two ways: he may satisfy the elements of the test laid out in the 1973 U.S. Supreme Court case of McDonnell Douglas v. Green, or he may present evidence that, put together, makes a “convincing mosaic” of retaliation.

The McDonnell Douglas case presents a three-part burden-shifting framework. In it, the employee must first demonstrate a prima facie case, which means showing that he (1) was a member of a protected group; (2) was qualified for his job; (3) suffered an adverse employment action; and (4) was treated less favorably than similarly situated employees outside of his protected group.

If the employee does this, the burden shifts to the employer to present a legitimate reason for its adverse employment action. After that, the burden shifts back to the employee to prove that the employer’s stated reason was merely a pretext for retaliation.

Alternatively, an employee can defeat an employer’s summary judgment motion if he has “circumstantial evidence that creates a triable issue” regarding the employer’s retaliatory intent, and the employee has a viable case if the evidence, “viewed in a light most favorable to the plaintiff, presents a convincing mosaic of circumstantial evidence that would allow a jury to infer” a retaliatory motive by the employer.

In A.I.’s case, the trial judge concluded that the deputy had established a prima facie case of retaliation but failed to show pretext. As a result, the court granted summary judgment to the employer. This was incorrect, according to the appeals court. Although the court had completed all steps of the McDonnell Douglas framework, that alone was not enough to justify throwing out A.I.’s case. In doing so, the appeals court highlighted that an employee who falls short under the McDonnell Douglas framework “is entitled to a full review under the convincing mosaic standard,” and that the “convincing mosaic” standard is broader than the McDonnell Douglas framework.

As a result, the appeals court sent the case back for review under the “convincing mosaic” standard, giving the deputy a renewed opportunity to win his retaliation case.

If that all sounds complicated and technical, that is reasonable. This area of the law is marked by considerable nuance. That is why, whether you are an employer or an employee, you need to be sure you have skilled legal counsel on your side to handle your retaliation or discrimination case. If you have questions about retaliation or discrimination law, the experienced Atlanta employment retaliation attorneys at the law firm of Parks, Chesin & Walbert can help you sort out your matter. Contact us through this website or at 404-873-8048 to schedule a consultation today.

According to a recent news release from the federal Wage and Hour Division, a Southern California restaurant was operating an illegal tip pool.

As background, the Fair Labor Standards Act does not set a limit on the percentage or amount of each employee’s contribution in valid mandatory tip pools. Instead, a tip pool’s validity depends on whether or not the employer takes the tip credit.

The tip credit is a legal mechanism that allows employers of tipped workers to pay them a cash wage below the federal minimum wage. Federal law sets the minimum cash wage for tipped workers at $2.13 per hour. In businesses that pay tipped workers a $2.13 cash wage, the tip credit is $5.12. Payment of a higher cash wage by the employer results in a lower tip credit and vice versa. If the worker’s actual tips fall below the tip credit amount, the employer must make up the difference such that the employee’s total wages equal at least $7.25 per hour.

Non-traditional and Traditional Tip Pools

If the employer pays employees a cash wage of $7.25 per hour or more, the employer may “impose a mandatory tip pooling arrangement that includes employees who are not employed in an occupation in which employees customarily and regularly receive tips.” This is called a non-traditional tip pool.

In a traditional tip pool, the employer pays workers a cash wage of less than $7.25 per hour and relies upon the tip credit. Employers that take tip credits can establish a tip pool, but the contributions must be tips only, and the workers who participate in the pool must be “limited to employees in occupations in which they customarily and regularly receive tips, such as waiters, bellhops, counter personnel (who serve customers), bussers, and service bartenders.”

An Illegal Tip Pool

In the Southern California restaurant case, the entity operated a traditional tip pool. However, the employer was illegally retaining a percentage of the tips in the pool and instructing managers to distribute only a fraction to workers. That is illegal. The law requires entities operating traditional tip pools to pay all tips collected to tipped workers. There is minimal leeway in this. The employer cannot, for example, take funds from a tip pool and simply give them to a manager whose house burned down, even if the employer had good intentions. The law is clear that an “employer that implements a traditional tip pool… may not retain any of the employees’ tips for any other purpose.” The employer may raise charitable contributions from its tipped workers in other ways, but it must distribute all its pooled tips to its tipped workers.

If you have questions about your tip pool and its compliance with the law, the experienced Atlanta tip-pooling attorneys at the law firm of Parks, Chesin & Walbert can provide the information you need. Contact us through this website or at 404-873-8048 to schedule a consultation today.

An FMLA interference case from outside Georgia illustrates one such area: the FMLA medical certification.

The employee in this case, D.D., became ill while employed at a state-run assisted living center. A visit to an urgent care clinic revealed that she was pregnant and her symptoms were morning sickness.

The woman eventually missed several days of work in May 2017 due to her morning sickness. Her employer provided her with an FMLA packet, which included a medical certification form for her doctor to complete. D.D.’s obstetrician completed the certification form. The completed form said that D.D.’s pregnancy was high-risk (she had lupus) and that she would need time off from work to attend multiple medical appointments, as well as additional time off following the baby’s delivery.

One of the form’s questions asked “Will the condition cause episodic flare-ups periodically preventing the employee from performing his/her job functions?” The obstetrician answered “no” to this question. Based on this certification, the employer approved periodic FMLA leave for D.D.’s medical appointments and continuous leave for post-birth recovery. Conspicuously, the approval did not mention morning sickness.

The woman continued to miss work due to morning sickness. On one occasion, she left work four hours early due to morning sickness. The employer ultimately deemed the absence unauthorized and terminated her.

D.D. sued for FMLA interference. The employer argued in court that it could not be liable for an FMLA violation because it relied solely on the employee’s certification form (which stated that D.D. would not need leave for “flare-ups”) when it concluded that morning-sickness-related absences were not covered under the auspices of D.D.’s FMLA leave.

The trial court ruled in favor of the employer, but the Court of Appeals disagreed. The court began by noting that, to have a successful interference claim, D..D. needed to demonstrate that: “(1) she was eligible for FMLA protections; (2) [her employer] was covered by the FMLA; (3) she was entitled to take leave under the FMLA; (4) she provided sufficient notice of her intent to take leave; and (5) [the employer] denied her FMLA benefits to which she was entitled.

The employer argued that, based on the certification form, D.D. could not possibly satisfy the third element. The court rejected this argument because it rejected the employer’s underlying premise, namely, that bouts of morning sickness were mere “flare-ups” of pregnancy. As the court stated, “it is difficult to see how [the employer] could consider morning sickness to be a ‘flare-up’ of [D.D.]’s pregnancy when the FMLA regulations expressly define morning sickness itself to be a ‘serious health condition involving continuing treatment by a health care provider.’”

‘Not Strictly Bound by the Precise Parameters’ of the Medical Certification

In D.D.’s case, the employer was “well-aware” of the woman’s need to take intermittent leave due to morning sickness when it approved her FMLA request. Of critical importance, the court explicitly stated that, “in such cases, we have recognized that an employee’s entitlement to FMLA leave is not strictly bound by the precise parameters laid out in the medical certification.”

In short, an employer may not rely on an ultra-strict interpretation of a medical certification when it already had actual knowledge of the employee’s need to take leave. As the court laid out, “a reasonable jury could find that [the employer] knew that [D.D.] would need intermittent leave for morning sickness as a result of her pregnancy when it approved the leave,” and that firing her for a morning sickness-induced absence was FMLA interference.

Have questions about the FMLA or possible legal claims of FMLA interference or FMLA retaliation? Give the experienced Atlanta FMLA attorneys at the law firm of Parks, Chesin & Walbert a call. Our team has extensive experience handling the full spectrum of FMLA issues, so we can provide you with the reliable advice you need. Contact us through this website or at 404-873-8048 to schedule a consultation today.

The federal Wage and Hour Division’s action against two interconnected Louisiana companies, detailed in a news release, highlighted a critical problem in that state and across the country: the misclassification of home care industry workers as independent contractors.

The division’s investigation revealed that a pair of connected companies misclassified more than 150 home care workers as independent contractors when they really were employees. The workers “typically worked long hours” but received only “straight time” for all hours they worked rather than straight time for the first 40 hours and time-and-a-half for all hours in excess of 40.

This can result in a significant loss of pay. Consider Jane Doe, a home care worker, who earns $20 per hour at her job. If she works 55 hours in a week but is misclassified as an independent contractor, she will receive only $1,100 that week. By contrast, if she is correctly classified as an employee, she would receive $1,250 ($800 for the first 40 hours at $20 per hour and $450 for the final 15 hours at 1.5 times $20 per hour).

Over the course of months… or longer… these losses add up to substantial amounts. The home care workers in Louisiana numbered 158, and their employer improperly failed to pay them more than $422,000 in overtime wages.

The U.S. Department of Labor’s regulations contain the test for classifying workers as employees or independent contractors. The rules apply the “Economic Realities Test.” That test includes six factors. They are: (1) the worker’s opportunity for profit or loss depending on managerial skill, (2) the investments by the worker versus those of the employer, (3) the permanence of the work relationship, (4) the nature and degree of control, (5) whether the work performed is integral to the employer’s business, and (6) the worker’s skill and initiative. As the department has explained in a fact sheet, the “goal of the test is to decide if the worker is economically dependent on the employer for work or is instead in business for themself.” Those receiving the independent contractor classification should only be those who genuinely are “working for themselves.”

For all your questions and legal advice regarding independent contractor versus employee classifications (or exempt versus non-exempt classifications), turn to the team of knowledgeable Atlanta worker classification attorneys at the law firm of Parks, Chesin & Walbert. Instead of making a costly mistake, call us and let us guide you through the process of proper classification. Contact us through this website or at 404-873-8048 to schedule a consultation today.

Any group of workers’ success in a collective action involves correctly identifying (and pleading) all the elements the law requires, and then meeting those elements’ standards.

A misclassification case from South Georgia provides valuable insights into these elements and standards. The defendant was a chain of retail stores. The lead plaintiff was an “inside” salesperson whose job was to sell John Deere equipment and machinery.

According to the salesman’s complaint, he and several of his colleagues “regularly work over 40 hours in a workweek, and often upwards of 60 hours per week.” The employer classified the salespeople as exempt employees. Due to “long workweeks and low commissions, Defendants’ salespeople regularly earn less than one and one-half times the federal minimum wage for all hours worked,” according to the lawsuit.

The salesperson’s lawsuit contained a procedural “wrinkle”: the employer did not oppose his motion for conditional certification. It is essential to understand that a court will not automatically grant an unopposed motion; the party making the motion must still have certain essentials in their motion papers.

The Eleventh Circuit’s Two-Part Approach

In reviewing the salesman’s motion, the district court reminded readers that, in the Eleventh Circuit, courts follow a “two-part approach to notice and certify an FLSA collective class.”

In the first step, the court reviews the plaintiff’s papers to decide whether or not a collective should be “conditionally certified.” To meet this burden, the plaintiff must demonstrate to the court that a “reasonable basis” exists for his claim that there are other similarly situated employees who wish to opt in.”

The district courts use a “fairly lenient” standard for deciding whether or not a reasonable basis exists.

The second part of the process is more demanding and requires more evidence. If the court finds that the various plaintiffs’ situations involve disparate facts or employment settings, then that may trigger a rejection of the collective action. If the employer has an affirmative defense that applies to some but not all of the would-be collective members, that might trigger a rejection of the lawsuit as a collective action.

One of the biggest keys to successfully obtaining certification of a collective is proving that all members of the collective are “similarly situated.” The FLSA itself does not precisely define what level of similarity a would-be collective must have, and neither has the Eleventh Circuit Court of Appeals.

Previous court decisions have made it clear that, while the employees’ jobs must be similar, they need not be identical. Instead, the law requires the court to consider the degree of similarity “with respect to their job requirements and with regard to their pay provisions.”

Other “guideposts” the courts often use include things like:

• whether the plaintiffs worked in the same geographic locations;
• whether the alleged violations occurred during the same time period;
• whether the same policies and practices governed plaintiffs and whether the same decision-maker established these policies and practices in the same manner; and
• the extent to which the alleged violations are similar.

Another thing to know is that you do need to satisfy all of these guideposts. For example, in the salesman’s case, all the would-be collective members held identical or similar job titles, and the alleged FLSA violations all occurred within the same general time period. The FLSA violations the workers alleged were identical: namely, that the employer misclassified all of them as exempt when they were really non-exempt. The employees, however, did not all work in one geographic area, with job sites spanning from Florida to Ohio.

In sum, despite the lack of geographic similarity, the remaining factors indicated that the parties were similarly situated, leading the court to grant the worker’s motion.

FLSA collective actions can provide workers with many benefits, including increased bargaining power and reduced costs… and more. Whether you are an employee or an employer, skilled counsel is often essential for navigating the collective action process. If you are involved in a collective action, the Atlanta collective action attorneys at the law firm of Parks, Chesin & Walbert can help. Our team is highly experienced in this complex, nuanced area of law, which is filled with many gray areas. To protect your rights, contact us through this website or at 404-873-8048 to schedule a consultation today.

An FMLA case that recently went before the 11th Circuit Court of Appeals puts this issue of correctly identifying FMLA-qualifying needs in the spotlight.

The employee, T.J., worked as a freight handler for a shipping and transportation company. His job duties included loading and unloading trucks. His employer demanded that freight handlers like T.J. check with a supervisor before clocking out each day to see if other trucks needed loading or unloading. If so, the employer expected the handlers to work overtime until all trucks were loaded/unloaded.

In 2020, the handler learned that his wife was pregnant. He asked about FMLA leave, but a manager told him he was “moving too fast” and that he should inquire about FMLA after the child’s birth.

Three months later, the couple learned that the wife’s pregnancy was “high risk.” Her high-risk status meant she could not work or drive, and that she needed her husband to provide as much of her care as possible.

Twice during the summer of 2020, the handler left work at his regularly scheduled time, refusing to work overtime because he needed to get home to help his wife, whose pregnancy was becoming increasingly problematic. After the second incident, the employer declared that T.J. had engaged in “job abandonment” and fired him.

The handler sued for FMLA retaliation and interference. As the 11th Circuit Court of Appeals explained, these claims differ: interference involves an employer who “denied or otherwise interfered with” the employee’s rights under the FMLA. In contrast, retaliation involves discrimination against an employee for engaging in an activity protected by the FMLA. The court also noted that an employer may be liable for interference even if it violated the statute unintentionally, because “the employer’s motives are irrelevant.”

The law allows employers to defend against claims of interference by demonstrating that “it would have terminated the employee regardless of [his] request for or use of FMLA leave.”

The appeals court concluded that the facts that the handler alleged made out a viable case of interference. The trial court had ruled for the employer, but the appeals court concluded that the trial judge’s focus was too narrow. While it was true, as the trial court stated, that the handler could not show that the employer’s actions prejudiced him by preventing him from driving his wife to doctor’s appointments or caring for her in an emergency, that was not the critical aspect to be analyzed, as the employer did not fire T.J. for missing work to take his wife to appointments.

Instead, the prejudice the handler endured was getting fired “as a direct result of leaving after completing his shift to care for his wife.” The employer had notice of this reason and that it was a qualifying one under the FMLA. Had the employer afforded T.J. intermittent FMLA leave, he could have used it on the days he left without working overtime, thereby avoiding termination for job abandonment.

That, according to the court, was the prejudice the handler suffered and upon which he could continue pursuing his interference case.

Do you have questions or concerns about the FMLA? Whether you are an employer or an employee, the knowledgeable Atlanta FMLA interference attorneys at Parks, Chesin & Walbert can help. Our team has extensive experience assisting both employees and employers with this intricate, often nuanced area of the law. Contact us today through this website or at 404-873-8048 to schedule a consultation at no cost to you.