Overtime Lawyer Blog

New Child Labor Laws Proposed

Thu, 26 Jan 2012 10:49:08 -0500

The Fair Labor Standards Act (FLSA) is one of the oldest federal employment laws. The FLSA sets forth certain requirements that impact nearly every employee who works for a wage in the United States. These requirements include the minimum wage provision and overtime pay. Pursuant to federal law, employees must be paid at least the federal minimum wage, which is $7.25/hour and all non-exempt employees must be paid time and a half for every hour worked in excess of 40 in any work week.

In addition to provisions concerning overtime pay and minimum wage, the FLSA also covers child labor laws. Recently the Department of Labor has proposed new federal laws seeking to amend current child labor laws to make them stricter and afford child workers performing agricultural work more protections.

If you have questions concerning the FLSA, it is important to speak with a knowledgeable Georgia worker’s rights attorney to answer your questions and ensure you are being treated properly under the law.

Among the changes include:

• Prohibiting children under 18 from working at grain elevators, silos, feedlots and livestock auctions and from transporting raw farm materials.

• Prohibiting children under age 16 who are being paid from operating most power–driven equipment, including combines and tractors. Where student-learners are allowed to operate the equipment, ensuring that the machinery has seat belts and rollover protection.

• Prohibiting those children 15 and younger from much work involving tobacco, including cultivating, curing and harvesting to prevent tobacco sickness; and

• Banning cellphone use and other electronic devices while operating power-equipment.

However, children aged 12-15 would still be able to work for pay at non-hazardous farm jobs.

Minimum Wage Violation Lawsuit Against Applebee’s Proceeds To Trial

Fri, 20 Jan 2012 11:22:28 -0500

A minimum wage violation lawsuit brought on behalf of 5,500 employees against Applebee’s restaurant will proceed to trial. Pursuant to the Fair Labor Standards Act (FLSA) lawsuit, Applebee’s employees are seeking back wages for thousands of employees who were paid less than minimum wage.

The FLSA impacts nearly every employee who works for a wage in the United States and provides that workers must be paid minimum wage (the federal minimum wage provision is $7.25/hour, in some states it is higher) and all non-exempt employees must 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.

If you have questions concerning your pay or believe that you have not received the minimum wage or overtime pay you are entitled to, it is important to speak to an experienced Atlanta wage and hour attorney who can review your situation and provide critical advice.

Many times issues arise when a business that employs many “tipped employees” erroneously pays other workers who only perform a portion of their work as “tipped” at the lower rate. In the Applebee’s situation, non-waiter workers claim that they were paid $2.13/hour, rather than the $7.50 they were entitled to. The non-waiter workers spent more than 20% of their time engaged in activities other than serving customers that were “non-tipped,” such as washing dishes and cleaning the restaurant. Generally, when a worker spends more than 20% of their time doing non-tipped work, they are entitled to receive standard minimum wage.

Number Of Wage And Hour Claims Increasing

Sat, 14 Jan 2012 12:57:45 -0500

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.

Federal Court Determines Workers’ Social Security Numbers Are Not Relevant When Filing Wage Violation Lawsuit

Thu, 05 Jan 2012 12:01:40 -0500

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.

Harris v. Superior Court Reviews Administrative Exemption

Fri, 30 Dec 2011 13:41:06 -0500

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.

Home Health Care Workers To Receive Overtime Pay

Wed, 21 Dec 2011 23:57:23 -0500

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.

Oracle Overtime Lawsuit Revived

Thu, 15 Dec 2011 17:33:53 -0500

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.

Computer Professionals Update (CPU) Act Expanding Computer Professionals Exemption Introduced In Senate

Thu, 08 Dec 2011 15:13:55 -0500

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.

Supreme Court To Review Whether Pharmaceutical Sales Representatives Are Exempt Under The Fair Labor Standards Act in Christopher v. SmithKline Beecham Corp.

Tue, 29 Nov 2011 22:23:24 -0500

The U.S. Supreme Court has just agreed to review Christopher v. SmithKline Beecham Corp., a significant case concerning pharmaceutical sales representatives. At issue, whether the sales reps are considered exempt or not exempt under the Fair Labor Standards Act (FLSA). If the court determines the reps are “outside salespersons” they would be considered exempt under the FLSA and not entitled to overtime pay. Alternatively, the sales reps would be entitled to receive back wages and overtime compensation if the court determines the reps do not fall within the "outside salesperson" exemption. Although the 9th Circuit found that the reps were exempt, the 2d Circuit found they were not. The Supreme Court's decision will provide critical guidance concerning the application of the "outside sales exemption."

Determining whether a worker is exempt v. non-exempt is one of the most frequently disputed matters in employment law. This determination can seriously affect the amount of money a worker brings home in wages and overtime. According to the FLSA, all 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 any workweek. If you have questions concerning your classification and whether you are entitled to overtime pay, it is a good idea to speak to a knowledgeable wage and hour lawyer.

In Christopher v. SmithKline Beecham, the U.S. Court of Appeals for the 9th Circuit determined that pharmaceutical sales representatives were exempt from overtime based on the FLSA’s outside sale exemption. In order to meet the outside sales exemption, an employee must meet the following tests:

• That his or her primary duty is making sales or obtaining orders or contracts; and
• The employee must be “customarily and regularly” engaged not at the employer’s place of business

The 9th Circuit determined that even though pharmaceutical sales reps do not “sell” to doctors, a “common sense” interpretation of their duties placed them within the terms of the outside sales exemption.

Previously, in a case involving similar issues, In re Novartis, the 2d Circuit determined just the opposite - that the outside sales exemption did not apply to pharmaceutical sales reps, and as a result, the workers were entitled to overtime pay. Specifically, the 2d Circuit determined that because federal law prohibits the sales reps from entering into contracts to sell the pharmaceutical products, they do not qualify for the exemption.

Am I Entitled To Holiday Pay?

Fri, 25 Nov 2011 13:48:55 -0500

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.

Vegas Casino Case- Smith v. Wynn – Finds Tip- Sharing Policies Violate State Law

Thu, 17 Nov 2011 13:54:54 -0500

A recent case out of Las Vegas places the tip sharing policies of some high profile casinos under intense scrutiny. At issue – a tip sharing policy that requires Las Vegas Strip casino workers to share their tips with their supervisors. Last week the Nevada District Court ruled that the policy in place at Wynn Resorts including Wynn Las Vegas and Encore, violates state law and that employees can’t be forced to share tips with supervisors or employees in other types of jobs.

Tip sharing policies can be complex – certain guidelines must exist to ensure workers receive all the pay they are entitled to. If you are a tipped employee and are unsure if your company’s tip sharing policy complies with federal or state law, it is important to consult with a knowledgeable Georgia overtime attorney.

Smith v. Wynn involved a dispute between table games dealer and their employer over the distribution of tips left by patrons. Wynn Resort employed several different types of tipped workers including table games dealers, slot department employees, poker dealers, valet parking attendants and cocktail waitresses. The table games department also had various types of employees – dealers, box persons and Casino Service Team Leads (CSTLs). Under the tip pooling policy, dealers were required to share their tips with the box men and CSTLs. While tip sharing is common among workers of the same job classification, sharing with supervisors may be problematic. A Nevada District Court judge determined that the policy in question violated state law.

In general, tip-sharing policies must follow certain guidelines including:

• Tips belong to employees, not the employer. Employees cannot be required to turn over part of their tips to the company except as part of a valid tip pooling arrangement.
• The employer cannot be part of a valid tip pooling arrangement
• Only employees who receive tips can be part of a pooling arrangement
• Employers must notify tipped employees of any required tip pool contribution and cannot retain employees’ tips for any other purpose.

California Supreme Court Hears Meal And Rest Break Case – Brinker v. Superior Court - Could Affect Workers Across The Country

Fri, 11 Nov 2011 12:23:11 -0500

A case being considered by the California Supreme Court has the potential to affect meal and rest breaks for all nonunion employees. At issue in Brinker v. Superior Court is whether an employer must ensure that hourly employees take breaks.

Currently, the California law provides that workers are entitled to a meal break after five hours of work. However, in practice many workers are unable to take scheduled meal breaks as the result of excessive work loads that worker’s can’t complete in the scheduled work day.

If you have questions concerning whether you are entitled to meal and rest breaks, and whether you are entitled to compensation for this time worked, it is important to speak to an experienced Atlanta wage and hour attorney.

The case was filed by five Brinker employees on behalf of company workers statewide. An estimated 60,000 hourly workers are included in the class action lawsuit. Brinker International operates several chain restaurants including Chili’s Grill & Bar. The workers assert that during busy times, they were unable to take their scheduled breaks.

Employee representatives further allege that based on California Labor Code provisions, employers must ensure that workers actually take those breaks. Making sure that employees are allowed breaks affects “vital protections” concerning the health and safety of workers and members of the public served by them. Company representatives counter that employers must only make the breaks “available” and that workers and managers may be flexible about when the employees actually take those break. Where workers miss a meal break, they may be entitled to one hour of overtime pay.

Computer Professionals Update (CPU) Act Seeks To Modify Whether Computer Professional Are Exempt Or Not-Exempt

Thu, 03 Nov 2011 19:22:32 -0500

The Fair Labor Standards Act (FLSA) sets forth overtime and wage guidelines that govern nearly every employee in the United States. Included in the FLSA are requirements that employees earn minimum wage and all employees who are not exempt 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.

Whether an employee is exempt vs. not-exempt can be a crucial factor in determining how much an employee earns and directly affects if a worker is entitled to overtime. In an attempt to clarify whether computer employees are exempt or not exempt, the Senate has recently introduced the Computer Professionals Update (CPU) Act in attempt to clarify those employees that fall into each category.

For example, in order to be considered “exempt,” currently computer employees must meet the following tests:

• The employee must make no less than $455/week
• The primary duties must consist of:

Applying systems analysis and techniques and procedures, including consultations regarding hardware, software or system specifications;
Designing and developing computer systems or programs;
Designing and developing computer programs related to machine operating systems; or
A combination of the above duties.

• An employee is not considered exempt where their primary duties involve the manufacturing or repair of computer hardware

Georgia Franchise Ordered To Pay Back Wages

Thu, 27 Oct 2011 11:42:41 -0500

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.

Violations Of Overtime Laws On The Rise

Thu, 20 Oct 2011 15:58:55 -0500

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.