As an attorney, I frequently find myself working through my lunch or eating while I work. Generally, this is due to necessity because of deadlines approaching or because of a need to incessantly catch up on work from being out of the office for whatever reason. Unfortunately, too many people can probably relate to the feeling of being behind on work as well as my experience of working through lunch. An important difference to make, however, is that as an attorney, I am (1) paid on a salary basis for all of my hours worked and (2) rightfully classified as an exempt employee under the learned professional exemption of the Fair Labor Standards Act ("FLSA"). Therefore, it is okay if I work through my lunch because my salary is designed to compensate me for every minute that I work, even if it's during my lunch. For many many other jobs though, especially any job that you are paid an hourly wage, if you work through your lunch or eat at your desk while doing work - even paperwork - then you NEED to be compensated by your employer. It's the law!
In a precedent setting class action case, a court in Pennsylvania recently found that the owners and operators of the Split Rock Resort in Pennsylvania’s Pocono Mountains had misclassified 259 salespersons as “independent contractors” and that those salespersons were entitled to over $2.2 Million in wages, benefits and penalties plus interest under Pennsylvania’s Wage Payment and Collection Law.
Protection from Retaliation Extends to Employees Who Only Make Oral Complaints about FLSA Violations
In Kasten v. Saint-Gobain Performance Plastics Corp., the Supreme Court clarified the language contained within the Fair Labor Standards Act of 1938 (Act) that forbids employers “to discharge . . . any employee because such employee has filed any complaint” alleging a violation of the Act, 29 U. S. C. §215(a)(3). In reversing the Seventh Circuit Court, the Supreme Court held that the scope of statutory term “filed any complaint” includes ORAL, as well as written, complaints.
A public hearing was held in Trenton, New Jersey on April 15, 2011 regarding a proposal to amend N.J.A.C. 12:56-6.1 and 12:56-7 with regard to exemptions from overtime compensation for executive, administrative, professional, and outside sales employees. The New Jersey Department of Labor and Workforce Development specifically wants to repeal its existing regulations for these exemptions and adopt the language of the federal counterparts instead. While the goal is to eliminate any inconsistencies between the state and federal regulations, the effect will be to lessen the burden on New Jersey employers hoping to justify denying overtime compensation to certain employees.
I have written about this issue of misclassification in our firm's class action blog, but my firm's recent filing of a lawsuit on behalf of misclassified Allstate agents reminded me again of the significance of this issue. Millions of workers are intentionally misclassified by their employers as independent contractors. Some of the reasons employers misclassify workers may be to avoid paying overtime compensation, workers compensation, family medical leave and/or unemployment benefits, among others.
A lawsuit has recently been filed against H&R Block Inc. for its refusal to pay its tax professionals for mandatory training sessions between tax seasons pursuant to the Fair Labor Standards Act. Because the lawsuit was filed as a nationwide collective action, other similarly-situated H&R Block tax professionals may be eligible to join the lawsuit to recover their unpaid wages.
Pogust Braslow & Millrood is investigating Comcast Corporation and TriWire Engineering Solutions, Inc, for possible violations of the Fair Labor Standards Act and state wage and hour laws. It is believed that Comcast contracts with companies, including TriWire Engineering Solutions Inc., to perform telecommunications installations and repairs for residence and business customers of Comcast. The individuals performing such work may have been misclassified as "independent contractors." At times, companies misclassify employees as independent contractors in order to avoid paying them overtime wages, reimbursing them for work-related expenses, or providing them with health insurance and other benefits of employment. Although these "independent contractors" are paid through a third party, TriWire, instead of by Comcast, these workers should be designated as employees if they receive their work orders from Comcast or TriWire, cannot negotiate independently with customers, and can only install Comcast services.
If you would like to discuss this investigation or have any questions, please contact us.
Our firm was recently approached by a customer service specialist at TD Bank who claimed she was required to show up twenty-five (25) minutes before her scheduled shift to boot up computers. Despite having to arrive early, her superiors informed her that she was not allowed to clock-in until five minutes before her scheduled shift time. If accurate, TD Bank was improperly withholding at least two hours of wages each week from its customer service specialists. And, as a non-exempt employee she would be entitled to time and a half for all hours over 40/week.
The Fair Labor Standards Act outlines the rights that employees have regarding overtime, but many employers completely ignore the standards set forth in this law. The law generally states that any non-exempt employer who employs any of his employees for a workweek longer than 40 hours shall only do so if the employee receives compensation for each hour over 40 at a rate of at least 1 1/2 times the regular rate at which he is employed (i.e. $15/hour for overtime instead of regular rate of $10/hour).