Tag Archives: DOL

September 28, 2011 · 9:50 am

Ninth Circuit rules that state social workers are not “learned professionals” exempt from overtime pay

On September 9, the Ninth Circuit ruled that Washington State social workers are not “learned professionals” exempt from FLSA overtime pay requirements, despite “rigorous” educational and training requirements for the positions.      Candidates for the position of Social Worker 2 were required to have a bachelor’s degree in social services, human services, behavioral sciences, or a related field, as well as eighteen months as a Social Worker 1 or two years of equivalent work experience. Candidates for Social Worker 3 were required to have additional experience beyond that of the Social Worker 2 position.  Additionally, new employees in those positions had to complete six more weeks of training once they are hired.

In siding with the DOL, the Ninth Circuit relied on two DOL opinion letters, which had found that a position requiring social workers to have a master’s degree in certain related fields met the criteria for exemption, but that a position requiring a bachelor’s degree did not, because an undergraduate degree did not rise to the level of specialized academic training required by the regulations to trigger the exemption.  The court noted that the education requirements for the social worker positions were not sufficiently specialized to qualify for the exemption.  On-the-job training and related work experience cannot be substituted for the requisite specialized academic training.

FLSA exemptions are narrowly construed against employers. Employers must therefore be very careful when analyzing whether to apply any overtime exemption

You may contact the Law Offices of Rose H. Robbins for a free consultation to see if you have a case for unpaid overtime or minimum wages by calling (954) 946-8130 or by filling out the confidential form below. If our office decides to accept your case and we enter into a written, signed retainer agreement you will not have to pay anything unless we win your case. Appointments are available at various locations in Palm Beach, Broward and Miami-Dade Counties.

Comments Off

Filed under Back wages, Exempt, Learned professionals, Misclassification, overtime-wages, State social worker, Unpaid Overtime Wages

Tagged as , , , , ,

September 20, 2011 · 10:19 pm

WHAT CONSTITUTES “COMPENSABLE TIME” UNDER THE FLSA?

This summary provides general information concerning what constitutes “compensable time” under the FLSA. The Act requires that employees must receive at least the minimum wage and may not be employed for more than 40 hours in a week without receiving at least one and one-half times their regular rates of pay for the overtime hours. The amount employees should receive cannot be determined without knowing the number of hours worked.

How is  “Employ” defined?

By statutory definition the term “employ” includes “to suffer or permit to work.” The workweek ordinarily includes all time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed work place. “Workday”, in general, means the period between the time on any particular day when such employee commences his/her “principal activity” and the time on that day at which he/she ceases such principal activity or activities. The workday may therefore be longer than the employee’s scheduled shift, hours, tour of duty, or production line time.

What is the Application of the Principles?

Employees “Suffered or Permitted” to work: Work not requested but suffered or permitted to be performed is work time that must be paid for by the employer. For example, an employee may voluntarily continue to work at the end of the shift to finish an assigned task or to correct errors. The reason is immaterial. The hours are work time and are compensable.

Waiting Time: Whether waiting time is hours worked under the Act depends upon the particular circumstances. Generally, the facts may show that the employee was engaged to wait (which is work time) or the facts may show that the employee was waiting to be engaged (which is not work time). For example, a secretary who reads a book while waiting for dictation or a fireman who plays checkers while waiting for an alarm is working during such periods of inactivity. These employees have been “engaged to wait.”

On-Call Time: An employee who is required to remain on call on the employer’s premises is working while “on call.” An employee who is required to remain on call at home, or who is allowed to leave a message where he/she can be reached, is not working (in most cases) while on call. Additional constraints on the employee’s freedom could require this time to be compensated.

Rest and Meal Periods: Rest periods of short duration, usually 20 minutes or less, are common in industry (and promote the efficiency of the employee) and are customarily paid for as working time. These short periods must be counted as hours worked. Unauthorized extensions of authorized work breaks need not be counted as hours worked when the employer has expressly and unambiguously communicated to the employee that the authorized break may only last for a specific length of time, that any extension of the break is contrary to the employer’s rules, and any extension of the break will be punished. Bona fide meal periods (typically 30 minutes or more) generally need not be compensated as work time. The employee must be completely relieved from duty for the purpose of eating regular meals. The employee is not relieved if he/she is required to perform any duties, whether active or inactive, while eating.

Sleeping Time and Certain Other Activities: An employee who is required to be on duty for less than 24 hours is working even though he/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 8 hours, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted night’s sleep. No reduction is permitted unless at least 5 hours of sleep is taken.

Lectures, Meetings and Training Programs: Attendance at lectures, meetings, training programs and similar activities need not be counted as working time only if four criteria are met, namely: it is outside normal hours, it is voluntary, not job related, and no other work is concurrently performed.

Travel Time: The principles which apply in determining whether time spent in travel is compensable time depends upon the kind of travel involved.

Home to Work Travel: An employee who travels from home before the regular workday and returns to his/her home at the end of the workday is engaged in ordinary home to work travel, which is not work time.

Home to Work on a Special One Day Assignment in Another City: An employee who regularly works at a fixed location in one city is given a special one day assignment in another city and returns home the same day. The time spent in traveling to and returning from the other city is work time, except that the employer may deduct/not count that time the employee would normally spend commuting to the regular work site.

Travel That is All in a Day’s Work: Time spent by an employee in travel as part of their principal activity, such as travel from job site to job site during the workday, is work time and must be counted as hours worked.

Travel Away from Home Community: Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is clearly work time when it cuts across the employee’s workday. The time is not only hours worked on regular working days during normal working hours but also during corresponding hours on nonworking days. As an enforcement policy the Division will not consider as work time that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile.

What are some typical problems?

Problems arise when employers fail to recognize and count certain hours worked as compensable hours. For example, an employee who remains at his/her desk while eating lunch and regularly answers the telephone and refers callers is working. This time must be counted and paid as compensable hours worked because the employee has not been completely relieved from duty.

You may contact the Law Offices of Rose H. Robbins for a free consultation to see if you have a case for unpaid overtime or minimum wages by calling (954) 946-8130 or by filling out the confidential form below. If our office decides to accept your case and we enter into a written, signed retainer agreement you will not have to pay anything unless we win your case. Appointments are available at various locations in Palm Beach, Broward and Miami-Dade Counties.

Comments Off

Filed under Back wages, Calculate Amount You May be Owed, Compensable time under FLSA, Fair Labor Standards Act ["FLSA"], overtime-wages, Unpaid Overtime Wages

Tagged as , , , , , , , , , , ,

September 7, 2011 · 10:29 pm

2 Jacksonville, Fla., restaurants and owners ordered to pay more than $934,000 to 30 workers

Two La Nopalera restaurants in Jacksonville and their owners have been ordered to pay 30 employees $934,425 in back wages and liquidated damages under the terms of consent judgments. The agreements resolve a U.S. Department of Labor lawsuit based on an investigation by its Wage and Hour Division that alleged violations of the Fair Labor Standards Act’s minimum wage, overtime pay and record-keeping provisions.

Investigators found that kitchen employees were improperly classified as exempt from FLSA overtime pay provisions and consequently paid salaries that did not include compensation for hours worked over 40 in a week. Additionally, every week, tipped employees would receive their tips plus a paycheck that together equaled the minimum wage; however, management required the employees to sign and return the paychecks, and would then cash the checks and put the money back into the restaurant. Through this process, while it appeared that the owners were paying wages, the employees actually were allowed to keep only their tips. Finally, the employers did not maintain accurate records of the hours worked by employees.

The employees will receive $584,425 in back wages and an additional $350,000 in liquidated damages. The restaurants will be allowed to make the payments in installments over 13 months.

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 of pay for hours worked over 40 per week. 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 the federal minimum wage, currently $7.25 per hour. Additionally, the law requires that accurate records of employees’ wages, hours and other conditions of employment be maintained.

You may contact the Law Offices of Rose H. Robbins for a free consultation to see if you have a case for unpaid overtime or minimum wages by calling (954) 946-8130 or by filling out the confidential form below. If our office decides to accept your case and we enter into a written, signed retainer agreement you will not have to pay anything unless we win your case. Appointments are available at various locations in Palm Beach, Broward and Miami-Dade Counties.

Comments Off

Filed under Back wages, Calculate Amount You May be Owed, Fair Labor Standards Act ["FLSA"], FLSA payroll records, Improper classification, Misclassification, overtime-wages, Restaurants, Unpaid Overtime Wages

Tagged as , , , , , , , , , , ,

August 1, 2011 · 12:20 pm

USCIS Reminder: Certain Fees May Not Be Collected From H-2A and H-2B Workers

As the traditional harvest season approaches, USCIS reminds petitioners that certain fees may not be collected from H-2A and   H-2B workers, according to 8 C.F.R. § 214.2(h)(5)(xi)(A) and § 214.2(h)(6)(i)(B). Delays in adjudicating these petitions may affect employers’ ability to place workers in time-sensitive jobs. To avoid delays, USCIS urges petitioners to submit sufficient information regarding their recruitment efforts and the nature of fees collected from H-2A and H-2B workers. USCIS also recommend petitioners refer to U.S. Department of Labor (DOL) guidelines on employers’ obligation to avoid passing costs to H-2A workers.

To facilitate the processing of Form I-129, Petition for a Nonimmigrant Worker, it is important that petitioners properly complete the form and answer questions 7, 8 and 9 of Section 3 of the H Classification Supplement to Form I-129. These questions ask about petitioners’ recruitment efforts and whether a prospective or current worker has paid job placement fees or similar compensation as a condition of employment.

Fees that workers may not pay include, but are not limited to, government-mandated fees that are prohibited under DOL rules, petition fees, attorney fees, recruitment costs and any fees that are conditions of employment.

USCIS determines whether fees are prohibited based on the totality of the circumstances. Therefore, we suggest, but do not require, that petitioners also consider including a statement or other documentation to support their answers to the questions in the H Classification Supplement.

USCIS considers the following, among other factors, in determining whether H-2A or H-2B workers have paid prohibited fees:

* Whether you collected, or intend to collect, directly or indirectly, any fee or compensation from any beneficiary of the H-2A or H-2B petition as a condition of employment

* Whether you entered, or intend to enter, into an agreement to collect, directly or indirectly, any fee or other compensation from any beneficiary of the H-2A or H-2B petition as a condition of employment

* Whether, to the best of your knowledge, the recruiter, facilitator or similar employment service that you used collected, or intends to collect, directly or indirectly, any fee or other compensation from any beneficiary of the H-2A or H-2B petition, as a condition of employment; and

* Whether, to the best of your knowledge, the recruiter, facilitator or similar employment service that you used entered, or intends to enter, into any agreement to collect, directly or indirectly, any fee or other compensation from any beneficiary of the H-2A or H-2B petition as a condition of employment.

Petitioners may demonstrate knowledge of the practices of their recruiter, facilitator or similar employment service by indicating that they made reasonable inquiries about the fee collections from the H-2A or H-2B workers.  If USCIS determines that the petitioner or employer knows or had reason to know that H-2A or H-2B workers paid any fees or other compensation as a condition of employment, the petition may be denied or revoked.

The Fair Labor Standards Act also applies to these recruitment fees.

You may contact the Law Offices of Rose H. Robbins for a free consultation to see if you have a case for unpaid overtime or minimum wages by calling (954) 946-8130 or by filling out the confidential form below. If our office decides to accept your case and we enter into a written, signed retainer agreement you will not have to pay anything unless we win your case. Appointments are available at various locations in Palm Beach, Broward and Miami-Dade Counties.

Comments Off

Filed under H-2A, H-2B, overtime-wages

Tagged as , , , , , ,

July 27, 2011 · 6:36 pm

Accounting Employer fails to dot his i’s and owes fired H1B worker $165K+ in back wages

The OALJ  Judge’s decision set forth the following:

“Ganze & Co. (Ganze) made a labor condition application with two inherent components, and wants to ignore half of what it did. Its primary focus was to have a worker. Because Limanseto, the Prosecuting Party, never did its work during the application‘s three year term, it bridles at the suggestion it should pay him a dime. But then there is the immigration half of the story, the half that requires Ganze to pay, with no offsets.”

“The H-1B visa didn‘t make Limanseto an indentured servant. Both he and Ganze remained free to end the relationship that served as the basis for his immigration status; when it ended, both had to deal with the consequences. The parties agree, and I find, that about six weeks before the October 1, 2008 start date its labor condition application had proposed—on August 14, 2008—Ganze ―ended the employment relationship. That part of Ganze‘s proof may be sufficient to end the employment under state law, but won‘t suffice to end its federal liability.”

“The Department also observed that the employer, at any time, may terminate the employment of the worker, notify INS, and pay the worker‘s return transportation, thereby ceasing its obligations to pay for non-productive time under the H–1B program.”

The court found that even the employer fired the employee,   because the employer failed to inform INS of the termination and did not pay the H1B employee’s fare back to the home country, his obligation to pay wages did not terminate at the time of firing. The Court also ordered the employer to pay back the original cost of obtaining the H1B visa to the fired employee.

The court ordered:

It is ordered that within 30 days:

1. Ganze must pay the Administrator for distribution to Limanseto back wages from October 1, 2008 at the rate of $25.30 per hour for 40 hours per week, payable monthly, for 154.5774 weeks;

2. Ganze must pay the Administrator for distribution to Limanseto $1,500 to reimburse Limanseto for what he paid in March 2008 as legal fees associated with preparing the labor condition application and form I-129Petition for a Nonimmigrant Worker;

3. Ganze must pay pre-judgment interest and post-judgment interest on these amounts at the Federal Short Term Interest rate plus 3%, as specified in 26 U.S.C. § 6621, compounded quarterly.

This blog is sponsored by the Law Office of Rose H. Robbins, established in 1987 and located in Boca Raton, Florida, which serves clients all over Florida.   The firm concentrates in the following areas: Employment Law &  Immigration. Rose H. Robbins is fluent in Spanish and French.  Tel: (954) 946-8130.  Email: rose (at) roserobbins.com

http://www.FLWageLawyers.wordpress.com

Office:  2255 Glades Road,  Suite 324A,    Boca Raton, Florida 33431

The Law Office of Rose H. Robbins, Lawyers and Attorneys, serve all of Florida including South Florida, North Florida, Miami-Dade County, Broward County, and Palm Beach County, as well as the cities of Hollywood, Fort Lauderdale, Boca Raton, Pompano Beach, Lighthouse Point, Deerfield Beach, Pembroke Pines, Miramar, Margate, Plantation, Aventura, Miami Beach, Hialeah, Coral Springs, Tampa, Jacksonville, Orlando, Cooper City and Coconut Creek in unpaid overtime, minimum wage, wage and hour, discrimination claims and immigration matters. Our goal is to level the playing field for employers who play by the rules.

You may contact the Law Offices of Rose H. Robbins for a free consultation to see if you have a case for unpaid overtime or minimum wages by calling (954) 946-8130 or by filling out the confidential form below. If our office decides to accept your case and we enter into a written, signed retainer agreement you will not have to pay anything unless we win your case. Appointments are available at various locations in Palm Beach, Broward and Miami-Dade Counties.

Comments Off

Filed under Accountant, Back wages, Calculate Amount You May be Owed, Fair Labor Standards Act ["FLSA"], H-1B

Tagged as , , , , , , , , , , , ,