Overtime

April 12, 2017 update on litigation of new Overtime Rule in the case of State of Nevada ET AL v. United States Department of Labor ET AL, Case No: 4:16-CV-00731

On November 22, 2016, U.S. District Court Judge Amos Mazzant granted an Emergency Motion for Preliminary Injunction and thereby enjoined the Department of Labor from implementing and enforcing the Overtime Final Rule on December 1, 2016. The case was heard in the United States District Court, Eastern District of Texas, Sherman Division (State of Nevada ET AL v. United States Department of Labor ET AL No: 4:16-CV-00731).

On December 1, 2016, the Department of Justice on behalf of the Department of Labor filed a notice to appeal the preliminary injunction to the U.S. Court of Appeals for the Fifth Circuit.

On February 22, 2017, the U.S. Court of Appeals for the Fifth Circuit granted a request by the Department of Justice for an extension of time of sixty days, until May 1, 2017, in which to file its reply brief. The additional time was requested on behalf of the Department of Labor “to allow incoming leadership personnel adequate time to consider the issues.” Nevada v. DOL, No. 16-41606, Motion For Extension to File Reply (Feb. 17, 2017).

12 examples of violations of federal wage and hour law (FLSA) for breaks and lunches

Lunch labor laws force employers to pay for all compensable time worked by non-exempt employees including applicable overtime. The determination of what is “compensable” time under lunch labor laws in an individual situation is a complex one and is best left to a labor lawyer with experience in DOL wage and hour law.

The following are 12 examples of typical violations of compensable time for non-exempt employees  including violations for rest and meal breaks laws:

1.) Rest and Meal Breaks:

a) Lunch breaks. Lunch labor laws (typically 30 minutes or more) do allow the employer not to compensate the employee as work time under certain circumstances. Thus, 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. An experienced labor lawyer will analyze the individual circumstances to determine when a lunch break is actually compensable.

b) Rest breaks. Rest breaks 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.

2.) Principles that are Applied to the Workday and Workweek to Calculate the Actual Number of Hours Worked  – Compensable Time:

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 why the employee has continued to work is immaterial. The additional hours are work time and are compensable.

3.) 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.”

4.) 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.

5.) 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.

6.) 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.

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

 8.)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.

 9.) 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.

10.)  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.

 11.) 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.

12.) What does “Employ” Mean under the FLSA?

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 time.

 If you feel that you have not been compensated for all the hours you have worked you may call the law office for a FREE  consultation about your claim for minimum wage or unpaid overtime wage violations at: (954) 948-8130. Or you can complete the simple form below for submission to us.  Please be advised that by merely 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 possible minimum wage and/or overtime pay violations claim We are passionate about defending and enforcing workers’ rights for unpaid wages.

Unpaid Overtime Lawyers Can Analyze Your FLSA Violations

Call (954) 946-8130 for a free evaluation of your FLSA labor case with a Florida lawyer. Find out if you may have an unpaid overtime wage claim.

General FLSA overtime compensable rule: An employer who allows an employee to work overtime  is generally required  to pay the employee premium pay for such overtime work unless there is an applicable exemption.

What is the general compensable rate for overtime pay?

Employees covered by the 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 or days of the week that an employee can work?

 No. There is no limit in the FLSA on the number of hours employees may work in any seven day workweek. In addition, the Act does not require overtime pay for work on Saturdays, Sundays, holidays, or regular days of rest, as such – only for those hours over 40 each week.

What is a single workweek in the FLSA?

Basically, a single workweek is 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. 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.

What is the importance of the “average hourly rate” for calculating overtime pay?

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. The calculation of the rate may be complex and require an analysis of the relevant factors for an employee.

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.

The FLSA 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. Calculating compensable time therefore requires a determination of the actual number of compensable hours worked.

Which Principles are Applied to the Workday and Workweek to Calculate the Actual Number of Hours Worked?

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 why the employee has continued to work is immaterial. The additional 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.

What happens  to the calculation of overtime pay when an employee works two or more different types of work?

A Florida labor law lawyer will look at  an employee’s work in a single workweek  where an employee works at two or more different types of work for which different straight-time rates have been established. In that situation,  the regular rate for that week is the weighted average of such rates.

How are non-cash payments calculated for purposes of unpaid overtime pay?

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

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.

FLSA Non-Exempt Employee who Receives a Salary for a 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 and will Remain FLSA Overtime Wage Violations: The overtime requirement may not be waived by agreement between the employer and employees.

 Which industries have the highest numbers of FLSA violations?

In 2014, according to the Department of Labor, the following industries had the highest violations (please click links for more information): 

agriculture,

nursing home

day care,

restaurants,

garment manufacturing,

guard services,

health care,

hotels and motels,

construction

janitorial services,

retail workers (particularly around the holiday season),

call centers and

temporary help.

Please feel free to call the law office for a FREE strictly confidential evaluation of your possible claim for  unpaid overtime wages  at: (954) 948-8130 or complete the simple form below for a direct submission to us.  Also please be advised that by merely 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 evaluating your overtime pay violations claim and we are passionate about defending and enforcing workers’ rights for unpaid wages.