October 30, 2012 · 8:15 pm

What Are The Overtime Pay Requirements Of The FLSA?

Mechanical clock

       General rule: An employer who requires or permits an employee to work overtime  is generally

required  to pay the employee premium pay for such overtime work.

What is the general FLSA requirement for overtime pay?

Unless specifically exempted, employees covered by  FLSA must receive overtime pay for hours worked in excess of 40 in a workweek at a rate not less than time and one-half their regular rates of pay.

Are there limits on the number of hours?

 No. There is no limit in the FLSA on the number of hours employees aged 16 and older may work in any seven day workweek. The Act does not require overtime pay for work on Saturdays, Sundays, holidays, or regular days of rest, as such.

What is considered a workweek in the FLSA?

FLSA applies on a workweek basis. An employee’s workweek is a fixed and regularly recurring period of 168 hours — seven consecutive 24-hour periods. It need not coincide with the calendar week, but may begin on any day and at any hour of the day. Different workweeks may be established for different employees or groups of employees. Averaging of hours over two or more weeks is not permitted. Normally, overtime pay earned in a particular workweek must be paid on the regular pay day for the pay period in which the wages were earned.

What are the minimum wage requirements of FLSA?

The regular rate of pay cannot be less than the minimum wage. The regular rate includes all remuneration for employment except certain payments excluded by the Act itself. Payments which are not part of the regular rate include pay for expenses incurred on the employer’s behalf, premium payments for overtime work or the true premiums paid for work on Saturdays, Sundays, and holidays, discretionary bonuses, gifts and payments in the nature of gifts on special occasions, and payments for occasional periods when no work is performed due to vacation, holidays, or illness.

What is the importance of the “average hourly rate”?

Earnings may be determined on a piece-rate, salary, commission, or some other basis, but in all such cases the overtime pay due must be computed on the basis of the average hourly rate derived from such earnings. This is calculated by dividing the total pay for employment (except for the statutory exclusions noted above) in any workweek by the total number of hours actually worked.

What happens when an employee works two or more different types of work?

Where an employee in a single workweek works at two or more different types of work for which different straight-time rates have been established, the regular rate for that week is the weighted average of such rates. That is, the earnings from all such rates are added together and this total is then divided by the total number of hours worked at all jobs. In addition, section 7(g)(2) of the FLSA allows, under specified conditions, the computation of overtime pay based on one and one-half times the hourly rate in effect when the overtime work is performed. The requirements for computing overtime pay pursuant to section 7(g)(2) are prescribed in 29 CFR 778.415 through 778.421.

How are non-cash payments calculated?

Where non-cash payments are made to employees in the form of goods or facilities, the reasonable cost to the employer or fair value of such goods or facilities must be included in the regular rate.

What are some typical FLSA problems?

Fixed Sum for Varying Amounts of Overtime: A lump sum paid for work performed during overtime hours without regard to the number of overtime hours worked does not qualify as an overtime premium even though the amount of money paid is equal to or greater than the sum owed on a per-hour basis. For example, no part of a flat sum of $180 to employees who work overtime on Sunday will qualify as an overtime premium, even though the employees’ straight-time rate is $12.00 an hour and the employees always work less than 10 hours on Sunday. Similarly, where an agreement provides for 6 hours pay at $13.00 an hour regardless of the time actually spent for work on a job performed during overtime hours, the entire $78.00 must be included in determining the employees’ regular rate.

Salary for Workweek Exceeding 40 Hours: A fixed salary for a regular workweek longer than 40 hours does not discharge FLSA statutory obligations. For example, an employee may be hired to work a 45 hour workweek for a weekly salary of $405. In this instance the regular rate is obtained by dividing the $405 straight-time salary by 45 hours, resulting in a regular rate of $9.00. The employee is then due additional overtime computed by multiplying the 5 overtime hours by one-half the regular rate of pay ($4.50 x 5 = $22.50).

Overtime Pay May Not Be Waived: The overtime requirement may not be waived by agreement between the employer and employees. An agreement that only 8 hours a day or only 40 hours a week will be counted as working time also fails the test of FLSA compliance. An announcement by the employer that no overtime work will be permitted, or that overtime work will not be paid for unless authorized in advance, also will not impair the employee’s right to compensation for compensable overtime hours that are worked.

Please feel free to call the law office at: (954) 948-8130 or complete the simple form below for submission to us if you would like more information about your possible employment claim.  A representative will review it and  contact you the same day. If you do not hear back from us then  it is possible that we did not receive it. This is a FREE consultation and you will not be charged for this contact or call. Also please be advised that, merely by submitting this form, no Attorney-Client relationship is formed with the law firm.   You must provide your name,  home  or cell phone number, your email address and your zip code in the form.  We look forward to discussing your overtime concerns and we are passionate about defending and enforcing workers’ rights.

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May 12, 2013 · 10:30 pm

US DOL recovers more than $1 million in back wages and damages for 196 employees of Bowlin Group LLC misclassified as independent contractors

COVINGTON, Ky. — The U.S. Department of Labor has obtained a consent judgment in federal court ordering Bowlin Group LLC and Bowlin Services LLC to pay 196 employees a total of $1,075,000 in back wages and liquidated damages.

 The judgment resolves a Labor Department investigation conducted by the Wage and Hour Division which found that the defendants misclassified 77 employees as independent contractors and violated the Fair Labor Standards Act by denying those workers and others overtime compensation, and failing to maintain accurate payroll records.

 The misclassification of employees as independent contractors cheats workers of wages and benefits to which they would otherwise be entitled to under the law, subsequently hurting our economy. It also leads to unfair competition because businesses that play by the rules operate at a disadvantage to those that don‘t.

 Bowlin Group LLC maintains its principal office in Walton, Ky., and operates five subsidiaries throughout Ohio and Kentucky. One such subsidiary is Bowlin Services LLC, which until May 2012 performed installation services under contract to Insight Communications, a cable, telephone and Internet provider in Kentucky. The employer classified some of its cable installers as employees but misclassified other installers doing the same work as independent contractors.

 All nonexempt employees, regardless of their classification by the employer as either an employee or independent contractor, were paid based upon the pieces of equipment they installed rather than at an hourly rate. They were thereby denied overtime compensation, which should have been time and one-half their regular rates of pay for hours worked beyond 40 in a workweek. Additionally, the employer failed to keep accurate records of the number of hours worked by each installer as well as employees performing fiber optic splicing, and falsified payroll records to minimize the numbers of hours worked.

The misclassification of workers as something other than employees, typically as independent contractors, presents a serious problem for affected employees and employers, and to the economy, Misclassified employees often are denied access to critical benefits and protections to which they are entitled, such as minimum wage and overtime, family and medical leave, and unemployment insurance. Misclassification of workers may also generate losses to the U.S. Treasury, and Social Security and Medicare funds, and to state unemployment insurance and worker compensation funds.

The Department of Labor and the Internal Revenue Service, through an interagency memorandum of understanding, are working together and sharing general information to reduce the incidence of misclassification of employees, reduce the tax gap and improve compliance with federal labor laws.

Memorandums of understanding with the IRS and state government agencies arose as part of the department‘s Misclassification Initiative, with the goal of preventing, detecting and remedying employee misclassification. In addition, under the terms of the information-sharing agreement, the department may share specific case information with the IRS.

The FLSA requires that covered employees be paid at least the federal minimum wage of $7.25 for all hours worked, plus time and one-half their regular rates, including commissions, bonuses and incentive pay, for hours worked beyond 40 per week. Employers also must maintain accurate time and payroll records. The FLSA provides that employers who violate the law are liable to employees for their back wages and an equal amount in liquidated damages.

Updated by RHR: May 9,2013

If you are a cable installer and would like more information about your possible employment claim, you may:

Call our law office at (954) 946-8130 for a free consultation about your wage concerns.

Send an email to rose <at> roserobbins.com 

Complete the form below for confidential submission to our law firm .

A representative will review your email or submitted form and  contact you.  This is a FREE consultation and you will not be charged for this consultation.  Also please be advised that, merely by submitting this form, no Attorney-Client relationship is formed with the law firm.  The ONLY way that an Attorney-Client relationship with  the Law Office of Rose H. Robbins is formed is by specifically written  agreement signed by you and the Law Office of Rose H. Robbins.  You must provide your name,  home  or cell phone number and your zip code and all remaining fields are optional.

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April 3, 2013 · 6:37 pm

11th Circuit Court finds in Lamonica v. Safe Hurricane Shutters that undocumented workers may recover unpaid wages under FLSA despite Hoffman case

hurrican shutters

Hurricane shutter installers filed suit against their employer, Safe Hurricane Shutters, Inc. under the Fair Labor Standards Act (FLSA).  On March 11, 2013, the 11th Circuit rejected employers’ arguments that employees were wrongdoers with no work authorization and no filed tax returns. The Court, relying on its prior opinion in Patel v. Quality Inn S., 846 F.2d 700 (11th Cir. 1988) and rejecting Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002),  found that an employee’s ability to recover unpaid wages for work already performed does not depend on their immigration status. Thus, in the 11th Circuit, a worker’s undocumented status will not bar his recovery in any FLSA action. A possible interpretation here is that this ruling will level the playing field by preventing violating employers from gaining unfair competitive advantage by saving money in denying undocumented workers their lawfully earned wages.

If you are an undocumented worker and would like more information about your possible employment claim, you may:

Call our law office at (954) 946-8130 for a free consultation about your wage concerns.

Send an email to rose <at> roserobbins.com 

Complete the form below for confidential submission to our law firm .

A representative will review your email or submitted form and  contact you.  This is a FREE consultation and you will not be charged for this consultation.  Also please be advised that, merely by submitting this form, no Attorney-Client relationship is formed with the law firm.  The ONLY way that an Attorney-Client relationship with  the Law Office of Rose H. Robbins is formed is by specifically written  agreement signed by you and the Law Office of Rose H. Robbins.  You must provide your name,  home  or cell phone number and your zip code and all remaining fields are optional.

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March 31, 2013 · 11:18 pm

Multiple Individuals Found to be Employers in FLSA Case Against Construction Companies

On February 12, 2013, the U.S. District Court for the Eastern District of New York (Leal v Masonry Serv. Inc ., E.D.N.Y., No 1:12-cv-00588, February 12, 2013) held that a construction worker sufficiently alleged that multiple individuals were his “employers” under the FLSA because each had operational control over his work. The Court stated,

“To determine whether an individual defendant is an employer within the meaning of the FLSA, “the overarching concern is whether the alleged employer possessed the power to control the workers in question . . . with an eye to the ‘economic reality’ presented by the facts of each case.” Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 139 (2d Cir. 1999) (citations omitted). Under the “economic reality” test, the relevant factors include whether the alleged employer: (1) had the power to hire and fire the employees; (2) supervised and controlled employee work schedules or conditions of employment; (3) determined the rate and method of payment; and (4) maintained employment records. Id. However, these factors are not exclusive. Indeed, under the “economic reality” test, which encompasses the totality of the circumstances, “any relevant evidence may be examined so as to avoid having the test confined to a narrow legalistic definition.” Id. Here, Plaintiff has alleged that the Moving Defendants, in their capacity as owners and directors of construction businesses operating within this district, had the power to hire and terminate employees, control work schedules and conditions of employment, and set wages. Plaintiff’s allegations of operational control, considered together, are sufficient to allege the Moving Defendants’ status as Plaintiff’s employer, as that term is defined under the FLSA and NYLL.”

To contact us if you would like more information about your possible employment claim:

You may call our law office at (954) 946-8130

You may send email to rose <at> roserobbins.com 

You may complete the form below for submission to our law firm .

A representative will review your email or submitted form and  contact you.  This is a FREE consultation and you will not be charged for this consultation.  Also please be advised that, merely by submitting this form, no Attorney-Client relationship is formed with the law firm.  The ONLY way that an Attorney-Client relationship with  the Law Office of Rose H. Robbins is formed is by specifically written  agreement signed by you and the Law Office of Rose H. Robbins.  You must provide your name,  home  or cell phone number and your zip code and all remaining fields are optional.

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December 26, 2012 · 11:10 pm

Does FLSA protection apply to undocumented aliens without work authorization?

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Are aliens without employment authorization entitled to FLSA protection?

Yes. Aliens withoutemployment authorization are nevertheless entitled to federal employment protection. Patel v. Quality Inn South, 846 F.2d 700 (11th Cir. 1988), cert, denied, 109 S.Ct. 1120 (1989)   [Entitlement to FLSA protection]; Matter of Reyes, 814 F.2d 168 (5th Cir. 1987)- [In FSLA/MASAWPA case, plaintiffs did not have to divulge their alienage as documented/undocumented or their citizenship, as those matters were irrelevant in regard to recovery]; Antenor v. D&S Farms, 88 F.3d 925 (11th Cir. 1996)  [Growers are joint employers with labor contractors for purposes of FLSA and AWPA].

Do pre-employment expenses go to into the calculation of the minimum wage?

Yes. FLSA protection extends to paying for farmworkers transportation to the U.S., for visa and immigration fees, and for pre-employment expenses which primarily benefit the growers. Arriaga v. Florida Pacific Farms, LLC, 305 F.3d 1228 (11th Cir. 2002);  Martinez-Bautista v. D & S Produce, 447 F.Supp.2d 954, 963-64 (E.D. Ark. 2006) [Farmworkers entitled to pre-employment expenses including transportation costs and visas which should go into the calculation of the minimum wage].

Does FLSA protection include protection from retaliation?

Yes. FLSA protection also includes protection from retaliation. Contreras v. Corinthian Vigor Insurance Brokerage, Inc., 103 F.Supp.2d 1180 (N.D. Cal. 2000),  reported in 11 Interpreter Releases 1158-60 (Aug. 14, 2000).

Do FLSA claims remain post-Hoffman?

 Yes. FLSA claims remain post – Hoffman Plastic. Zavala v. Wal-Mart Stores, Inc., 393 F.Supp.2d 295, 320-32 (D.N.J. 2005) [Hoffman Plastics does not bar FLSA claim by undocumented janitors]; Flores v. Amigon, 233 F.Supp.2d 462 (E.D.N.Y. 2002) [Refused discovery request regarding employee's immigration status because it is not relevant to back wage claim for violation of FLSA]; Singh v. Jutla & CD. & R’s Oil, Inc., 214 F.Supp.2d 1056 (N.D. Cal. 2002) [Court declined to extend Hoffman to preclude a claim for retaliatory discharge based upon employer informing DHS to arrest undocumented employee]; Ulloa v. Al’s All Tree Service, Inc., 768 N.Y.S. 2d 556 (D.C. 2d 2003) [Hoffman Plastic Compounds, Inc. does not bar FLSA claim].

How does FLSA apply to detained aliens?

At least one court has found that a detained alien has no right under FLSA to receive more than $l/day paid by INS for work because s/he is not an employee, Alvarado-Guevara v. INS, 902 F.2d 394 (5th Cir. 1990), and at least one court has found that requiring persons to work at Oakdale Detention Center does not violate the Thirteenth Amendment.   Channer v. Hall, 112 F.3d 214 (5th Cir. 1997)

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You may call our law office at (954) 946-8130 to see if you have a case or please feel free to complete the form below for submission to our law firm if you would like more information about your possible employment claim.  A representative will review it and  contact you. Please allow one  business day for someone to contact you and if you do not hear back from us then  it is possible that we did not receive it. This is a FREE consultation and you will not be charged for this call. Also please be advised that, merely by submitting this form, no Attorney-Client relationship is formed with the law firm.  The ONLY way that an Attorney-Client relationship with  the Law Office of Rose H. Robbins is formed is by specifically written  agreement signed by you and the Law Office of Rose H. Robbins.  You must provide your name,  home  or cell phone number and your zip code and all remaining fields are optional.

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October 2, 2012 · 12:49 am

Miami-based Barton G. restaurants to pay $28,000 in back wages to 99 low-wage workers for FLSA violations

Barton G. Inc.

Agency Name: Wage & Hour Division (WHD), US Department of Labor

Release Number:  12-512-ATL (160)

Release Date: April 30, 2012

MIAMI — Barton G. Inc., operator of three fine dining establishments, has agreed to pay $28,027 in back wages to 99 employees following investigations by the U.S. Department of Labor’s Wage and Hour Division, which found violations of the minimum wage, overtime and record-keeping provisions of the Fair Labor Standards Act (“FLSA”). These were disclosed at all of the restaurants: Barton G. The Restaurant in South Beach; Prelude By Barton G. inside the Adrienne Arsht Center for Performing Arts in Miami; and The Villa By Barton G. inside the former Versace Mansion in Miami.

Investigators from the division’s Miami District Office found systemic FLSA violations at the Barton G. restaurants resulting from the company’s failure to properly compensate tip-earning employees, such as servers and bartenders, for all hours of their work. After reviewing payroll records and conducting employee interviews, investigators determined that many employees were made to rely primarily on tips and earned wages that fell below the federal minimum wage of $7.25 per hour. Barton G. also failed to properly calculate and compensate tipped employees for all overtime hours, those worked in excess of 40 in a week. Additionally, record-keeping violations occurred due to the company’s failure to maintain accurate payroll records, as required under the FLSA. Specifically, in one of the restaurants, servers were paid a percentage of their sales, which is a commission and not a tip.

Following the investigations, Barton G. agreed to pay all back wages due and to maintain future compliance with the FLSA. The company also has committed to changing its payroll system to catch employees whose wages fall below the minimum wage and is training its payroll department to properly calculate overtime for tipped employees.

The restaurant industry employs some of our country’s lowest paid workers who, due to a lack of knowledge of the law or unwillingness to exercise their rights, are vulnerable to disparate treatment and labor violations.

The FLSA requires that covered employees be paid at least the federal minimum wage for all hours worked, as well as one and one-half times their regular rates for hours worked over 40 per week. The act also requires that accurate records of employees’ wages, hours and other conditions of employment be maintained. If certain conditions are met, the FLSA permits an employer to take a tip credit toward its minimum wage obligation for tipped employees. The employer must pay tipped employees a cash wage of $2.13 per hour or the state mandated cash wage, whichever is higher; all tips must be retained by the employee except for contributions to a valid tip pooling arrangement; employees must be informed of the tip credit provision; and the amount of tips plus cash wages must equal at least the federal minimum wage, currently $7.25 per hour. Additionally, some states, including Florida, have a higher requirement for the employer’s share of wages.

If you are currently employed as a tipped waiter/waitress in a restaurant and believe that you have been denied minimum and/or overtime pay there  you should consult a labor  attorney to evaluate your potential case.

This post is intended to provide you with information about overtime and wage cases filed throughout the country by other law firms and the government. It serves to give you an idea of the types of issues which are currently being litigated by employment lawyers as well as those which have been “settled.”

As a courtesy to you, we are providing the court name, case number and date filed to facilitate your search for it on the federal PACER website. Current information regarding case status, parties and attorneys is available on PACER to anyone who opens an account with them.

Please also note that some cases we report on were initiated by the Department of Labor and then settled  without having been filed in Federal Court and thus will not be available on the PACER website. For these cases we generally provide a brief summary of the findings and results.

Please feel free to complete the form below for submission to our law firm if you would like more information about your possible employment claim.  A representative will review it and  contact you. Please allow one  business day for someone to contact you and if you do not hear back from us then  it is possible that we did not receive it. This is a FREE consultation and you will not be charged for this call. Also please be advised that, merely by submitting this form, no Attorney-Client relationship is formed with the law firm.  The ONLY way that an Attorney-Client relationship with  the Law Office of Rose H. Robbins is formed is by specifically written  agreement signed by you and the Law Office of Rose H. Robbins.  You must provide your name,  home  or cell phone number and your zip code and all remaining fields are optional.

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September 28, 2012 · 9:29 am

Assisted living facility pays more than $151,000 in back wages to 15 employees for violations of FLSA minimum wage and overtime provisions

Exceptional Enterprises, Inc.

Agency Name:  Wage & Hour Division (WHD), US Department of Labor

Release Number: 12-1483-ATL (276)

Release Date: July 26, 2012

   Exceptional Enterprises Inc. of Coalmont, Tennassee has paid $151,119 in back wages to 15 employees following a U.S. Department of Labor  (“DOL”) investigation that found violations of the Fair Labor Standards Act’s minimum wage and overtime provisions.

DOL’s Wage and Hour Division determined that the employer had been improperly deducting time for sleep from employees’ hours, resulting in minimum wage violations for the sleep time that was not compensated. The employer also failed to pay employees overtime compensation at one and one-half times their regular rates for hours worked beyond 40 in a week.

Under the FLSA, an employee who is required to be on duty for a period of fewer than 24 hours is considered to be working even if he or she is permitted to sleep or engage in other personal activities when not busy. An employee required to be on duty for 24 hours or more may agree with the employer to exclude from hours worked bona fide regularly scheduled sleeping periods of not more than eight hours. In this case, the employees were required to be on duty for fewer than 24 hours.

The FLSA also requires that covered, nonexempt employees be paid at least the federal minimum wage of $7.25 for all hours worked, plus time and one-half their regular rates, including commissions, bonuses and incentive pay, for hours worked beyond 40 per week.

Exceptional Enterprises has agreed to comply with the FLSA in the future and will post required notices informing employees of their rights under federal labor laws.

If you are currently employed in an assisted living facility and believe that you have been denied minimum and/or overtime pay you should consult a labor  attorney to evaluate your potential case.

This post is intended to provide you with information about overtime and wage cases filed throughout the country by other law firms and the government. It serves to give you an idea of the types of issues which are currently being litigated by employment lawyers as well as those which have been “settled.”

As a courtesy to you, we are providing the court name, case number and date filed to facilitate your search for it on the federal PACER website. Current information regarding case status, parties and attorneys is available on PACER to anyone who opens an account with them.

Please also note that some cases we report on were initiated by the Department of Labor and then settled  without having been filed in Federal Court and thus will not be available on the PACER website. For these cases we generally provide a brief summary of the findings and results.

Please feel free to complete the form below for submission to our law firm if you would like more information about your possible employment claim.  A representative will review it and  contact you. Please allow one  business day for someone to contact you and if you do not hear back from us then  it is possible that we did not receive it. This is a FREE consultation and you will not be charged for this call. Also please be advised that, merely by submitting this form, no Attorney-Client relationship is formed with the law firm.  The ONLY way that an Attorney-Client relationship with  the Law Office of Rose H. Robbins is formed is by specifically written  agreement signed by you and the Law Office of Rose H. Robbins.  You must provide your name,  home  or cell phone number and your zip code and all remaining fields are optional.

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