Wage & Hour Claims
All workers in the United States are protected by the Fair Labor Standards Act (FLSA), a federal law that sets basic protections for workers' payment and hours worked. The FLSA is where we get a standard 40-hour work week, overtime requirements and the federal minimum wage. (States often enact their own minimum wages.) It also makes child labor illegal.
Employers should be aware of this law because it governs some of their most basic interactions with their employees. However, many consistently break the law by denying overtime, misclassifying hourly employees as exempt, pressuring or even ordering employees to work off the clock, allowing managers to skim from tipped employees' tip pools, altering time cards and much more. In many cases, they rely on the employees' ignorance of their rights to protect themselves from consequences of their illegal actions.
Under the FLSA, employees who are not exempted under the law must be paid for all of the time they work, regardless of whether the employee is hourly or salaried. Time you spend working off the clock or away from your normal workplace is still “working time” for which you should be compensated. Unfortunately, some employers frequently ask their workers to perform tasks without compensation.
Examples of work for which some employers - illegally – do not compensate employees include:
- Misclassifying an employee as exempt when she is too junior to qualify.
- Asking a worker to run errands for the employer on the way home.
- Regularly asking workers to put on uniforms or special equipment before clocking in and take them off after clocking out.
- Automatically deducting breaks from time cards, regardless of whether the break is taken.
- Asking workers to take work home to meet a deadline.
Employers may truly find the FLSA's complex overtime provisions confusing -- or they may use its complexity to justify intentional violations of the law. Employees who can earn overtime are called non-exempt employees. Under the law, they must be paid "time and a half" (1.5 times their normal wage) for any hours worked more than 40 hours a week. However, unless the workers are under 18, there is no limit on the amount of overtime employers may ask for. The overtime provision is created to keep employers from exploiting their workers by making it expensive for them to demand too much overtime.
However, because it's expensive to pay significant amounts of overtime, some employers find ways to deny or hide it. They may pressure employees to work after they clock out, alter time cards or simply not pay the overtime and hope the employee doesn't notice. These practices may be widespread, but that doesn't make them legal.
It's a common myth that employees are not entitled to overtime if they are paid with a salary rather than an hourly wage. In fact, you may be entitled to overtime even if you are a salaried employee. The type of work you do helps determine whether you're exempt under the FLSA.
Exempted employees include:
- People whose work is directly related to management of the business (managers, executives).
- People whose work is directly related to the general business operations of the business (administrators, accountants, human resources).
- Professionals who have special academic training (doctors, lawyers).
- Certain kinds of computer workers.
- Salespeople who work away from the employer's main place of business.
- People in a recognized creative or artistic field.
The federal Department of Labor recommends that employers determine whether an employee is exempt on a case-by-case basis, rather than tie exemptions to job titles or categories. States may have different standards, and employees have the right to protection from whichever law is more generous to them. Employees who should not be exempt are frequently classified as exempt, accidentally or intentionally, by employers, denying them potential years of overtime pay.
Workers at restaurants, hotels and other businesses where tipping is common are especially vulnerable to illegal behavior by employers. Common violations for waiters, busboys and other tipped employees include:
- Paying employees less than the state's minimum wage for that category of employee
- Deducting tips from employees' paychecks
- Charging waiters for "walk-outs" who did not pay for their meals.
- Allowing managers to participate in tip pooling -- that is, to pocket part of the employees' tips. This includes mandatory gratuities.
- Illegally shaving time off timecards.
- Refusing to pay overtime for more than 40 hours a week of work.
It can be difficult to decide whether an employer's behavior truly is illegal, especially if you're concerned about negative consequences at work for standing up for yourself. An experienced lawyer at Joseph & Kirschenbaum LLP can help you. Since 1999, our wage and hour attorneys have helped employees recover wages, tips or salary illegally withheld. Even if you have already left the job, please contact us as soon as possible to discuss a possible wage and hour lawsuit and to help you recover earnings to which you may be entitled.