FLSA

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.

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

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 departments 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.

If you are a Florida cable installer and would like more information about our legal services in the area of unpaid overtime for misclassified independent contractors you may call 954/946-8130 OR

APPLY ONLINE NOW FOR A CONFIDENTIAL FREE CONSULTATION.

Does FLSA protection apply to undocumented aliens without work authorization?

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Call (954) 946-8130 for a free telephone consultation with a Florida lawyer with immigration law experience about your unpaid overtime and minimum wage claim.

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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