Atlanta Overtime Lawyers Blog

Employees Who Attend Training Classes May Be Entitled To Pay

Published on: June 18, 2014 | by Martin & Martin, LLP

The rules on worker’s pay are located in the Fair Labor Standards Act (FLSA). The FLSA states that hourly workers must receive at least minimum wage per hour and at least time and a half for all hours over 40 in a week. The FLSA also requires non-exempt salaried employees to receive their salary plus additional pay for all overtime hours each week. To determine how much an employee should be paid, you need to know how many hours an employee worked each week and this can become tricky.

In order to determine the number of hours an employee worked, the Department of Labor (DOL) says that 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.”

Does this mean an employer has to pay for training time? The DOL also says that an employer must pay for training time unless the employer can prove that the training program was outside regular hours, voluntary, not job related, and no other worked is performed at the same time. Therefore, if your employer requires you to attend training especially if it is specific for your job, your employer must pay you for the time spent in training and if the training time bumps you to overtime hours, you must be paid overtime.

Minimum Wage & Overtime Collective/Class Actions: FAQS: My Co-workers Started A Class Action For Back Pay, Should I Join? Or I Received Notice Of An Overtime Lawsuit, Should I Join?

Published on: June 17, 2014 | by Martin & Martin, LLP

Our law firm is frequently asked by potential clients whether they should or have to join a case for back wages and/or overtime started by one of their co-workers. To answer that question, you need to understand how the class action mechanism works under the Fair Labor Standards Act (“FLSA”). It’s actually called a “collective action” but for simplicity, we will use the term “class action.”

The FLSA permits employees to file a lawsuit as a class action and permit other employees who held similar jobs and who were paid similarly to join the case as class members. The employee who starts the case is called the “Named Plaintiff.” The Named Plaintiff seeks permission from the Court to permit other employees to join the case. If the Court permits other employees to join the case, the other employees are typically given around 45-60 days to join the case. This is called the “Notice Period.” Once the Notice Period closes, no further employees can join that specific case. However, this does not mean you lose your right to recover damages. It just means you will have to file your own lawsuit.

The FLSA is unlike other class action laws because it does not require employees to join the case and instead permits employees to file their own lawsuits. Under this scheme, you could have one class case against an employer as well as multiple single employee cases.

United States Department Of Labor Settles Back Wages Claim For Construction Workers For Almost $5 Million On Federally Funded Project

Published on: June 16, 2014 | by Martin & Martin, LLP

Do You Work On A Construction Site That Receives Federal Funds?

This month, the United States Department of Labor (DOL) reached a settlement with MDG Design & Construction, LLC and others to resolve wage violations at a construction project in New York that was federally-assisted. MDG and others agreed to pay $3.8 million to MDG’s subcontractors’ construction workers who were not paid properly. This is in addition to another payment of more than $1.1 million in back wages to other laborers.

Because the construction project was federally funded, the Davis-Bacon and Related Acts (DBRA) apply which require that all contractors and subcontractors pay laborers and mechanics at least the locally “prevailing wages” including fringe benefits. The “prevailing wage” is a set wage that is calculated looking at the basic hourly rate plus any fringe benefits in the Act’s wage determination. These wage determinations can be found online at wdol.gov/dba.aspx.

Are CEOs Individually Liability In Wage/Overtime Cases Under The FLSA?

Published on: March 10, 2014 | by Martin & Martin, LLP

The 11th Circuit Court Of Appeals Rules on a CEO’s Individual Liability Under The FLSA

In a case against Appliance Direct, Inc. in Florida, former delivery truck driver employees filed an overtime lawsuit and a retaliation lawsuit against the company and the CEO individually. In finding that the CEO could be held personally liable to the employees, the 11th Circuit Court of Appeals stated that Section 203(d) of the Fair Labor Standards Act (“FLSA”) defines the employer as including “any person acting directly or indirectly in the interest of an employer in relation to an employee.” Thus, the 11th Circuit ruled that an officer of a company can be personally liable as an “employer” under the FLSA if the officer has “operational control of a corporation’s covered enterprise,” which could be involvement in the day-to-day operation of the corporation or direct supervision of the employees at issue in the case.

In the Appliance Direct case, the 11th Circuit found that the CEO was part owner of the company, he guided company policy, and gave instructions to the managers regarding their job duties. The CEO was the ultimate decision maker at the corporation, he negotiated leases and vendor contracts, and importantly, he directed the employment practices directed at the employees that were issue in the case. The 11th Circuit affirmed the jury verdict holding the CEO personally liable for violations of the FLSA against the drivers.

Atlanta’s Club Onyx Settle Stripper Lawsuit For $1.55 Million

Published on: March 3, 2014 | by Martin & Martin, LLP

In June 2012, a fair pay collective/class action case that had been filed against Club Onyx settled. The strippers settled the case for $1.55 million. The strippers brought the case complaining that they were illegally classified as independent contractors as opposed to employees. The dancers claimed that they were actually employees – not independent contractors – and as employees they were entitled to minimum wage for each hour they worked. The settlement closed the matter for the 73 strippers who participated in the case.

If you worked at a strip club within the last 3 years and were treated as an independent contractor, you could be entitled to the recovery of lost wages. You can contact Martin & Martin, LLP for a free consultation. For more information about other stripper lawsuits in the nation, go to strippersrights.com.

Court Approves Stripper’s $8 Million Dollar Settlement With Penthouse Executive Club

Published on: February 17, 2014 | by Martin & Martin, LLP

On January 14, 2014, a New York District Court approved a settlement on behalf of strippers who worked at the Penthouse Executive Club. The strippers had filed the lawsuit alleging that the club misclassified the dancers as independent contractors instead of employees, did not pay them wages, illegally required that they pay “house fees” and other types of fees and unlawfully took tips from them in violation of the Fair Labor Standards Act (“FLSA”) and New York law. The dancers sought unpaid wages, unpaid overtime, liquidated damages (“double damages”), and attorneys’ fees and costs. Over 1,000 dancers joined in the lawsuit and agreed to the settlement.

This case is another case in a long line of cases that are based upon a strip club’s failure to pay wages to its dancers. Typically, strip clubs have considered its dancers as independent contractors as opposed to employees. The clubs do not provide any wages to the strippers. Their only pay is comes from the tips they make from customers. However, the dancers are required to pay “house fees” to work each shift along with fees to the “house mom,” security, DJ, bartenders, etc. Courts around the country have found that dancers are actually employees – not independent contractors – and are therefore, entitled to an hourly wage for every hour worked. The FLSA permits dancers to go back at least 2 years to recover unpaid wages and permits successful plaintiffs to recover liquidated damages a/k/a “double damages” which double the amount a dancer can recover.

Martin & Martin, LLP handles cases on behalf of strippers. If you have danced at a club anytime within the last 3 years and were told by the club that you were an independent contractor – you could be entitled unpaid wages and liquidated damages. Dancers can get a fast, free consultation by contacting our firm.

One Year Until New Rules Start For Minimum Wage And Overtime Pay For Home Health Care Workers

Published on: November 19, 2013 | by Martin & Martin, LLP

This fall, the Department of Labor (“DOL”) announced that starting in January 2015 it would extend the minimum wage and overtime pay laws to home health care workers in all states. These workers, currently classified as exempt from minimum wage and overtime, provide care to the disabled and elderly populations with at-home tasks including taking prescriptions, bathing, and eating. The new minimum wage and overtime pay laws will apply to home health aides, certified nursing assistants, and personal care aides that work in the homes of the elderly or disabled. The new federal compensation laws, however, will apply only to home healthcare agencies and not to workers who visit the elderly for companionship and/or are employed directly by the individual/family needing the care. This means that direct care workers who perform medically-related work for which training is required who work through an agency will be entitled to minimum and overtime wages.

While these laws may be new to most states, as many as fifteen states already have state laws requiring that the state minimum wage and overtime rules apply to home health care workers and as many as six other states and Washington, D.C. require the application of minimum wage laws to home health care workers but not overtime. As of January 2015, however, health care workers across the country will be able to recover minimum and overtime wages. As a result of the new, higher wages, organizations like the AARP hope older Americans will receive better, more trained care.

Overtime wages for home health care workers will be calculated at one and a half times their regular rate of pay for all hours over 40 in a given workweek. This means that for hours 1 – 40 in a workweek, a health care agency will be required to compensate its workers at least minimum wage ($7.25) and for all hours over 40 in a workweek, the health care agency will be required to compensate its workers at one and a half times their regular hourly rate.

Exotic Dancers Are Employees – Not Independent Contractors – Entitled To Minimum Wage And Overtime

Published on: March 10, 2013 | by Martin & Martin, LLP

Within the last few years, the issue of the proper status of exotic dancers or strippers has been litigated throughout the country and the general consensus among courts is that they are employees – not independent contractors — and entitled to at least minimum wage and overtime wages under the Fair Labor Standards Act (“FLSA”).

Typically, clubs classify exotic dancers as independent contractors and require the dancers to pay the club fees for the right to perform. The clubs, themselves, do not pay wages to the dancers at all. Rather, the dancer’s pay is completely from the tips from customers. As so-called independent contractors, the clubs do not ensure that the dancers are making at least minimum wage and do not pay the dancers overtime for hours over 40 per workweek. However, courts across the country have found that the independent contractor status is improper meaning the clubs must pay its dancers minimum wage and overtime pay for at least the previous two years.

In ruling that the dancers are “employees” as opposed to “independent contractors,” courts have looked to the fact that clubs typically set the prices for tableside dances, set the dancer’s schedules, create rules of conduct, discipline the dancers, and otherwise control the method and manner in which the dancers worked. Therefore, courts have found that the dancers were actually employees – not independent contractors – and as employees, they were entitled to minimum wage and overtime wages pursuant to the FLSA.

Workers May Be Entitled To Pay For Time Traveling For Work

Published on: February 25, 2013 | by Martin & Martin, LLP

Many times companies require employees to travel from one location to another and the question arises whether this travel time is compensable. Is an employer required to pay its employees for travel time? Courts look at three factors: 29 Code of Federal Regulations § 785.38 essentially looks at three factors and provides that travel from a designated place to the work place is compensable where (1) an employee is required to report at a meeting place to receive instructions or (2) to perform other work there, or (3) to pick up and to carry tools.

The Portal to Portal Act addresses the issue of whether travel time is compensable under the FLSA. The Act provides an employer is not required to pay the minimum wage to an employee for: (1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform; and (2) activities which are preliminary to or postliminary to said principal activity or activities.

Therefore, travel time is compensable under The Portal to Portal Act if it is a principal activity of the employee. 29 U.S.C. § 254. A principal activity refers to work which is “necessary to the business and is performed by the employees, primarily for the benefit of the employer.” Normal commuting from home to work and back is considered ordinary travel and not a “principal activity” absent a contract stating otherwise. 29 U.S.C. § 254; 29 C.F.R. §§ 785.34 and 785.35. Travel from an employer’s campus to the “actual place of performance” is noncompensable. 29 C.F.R. § 790.7(e). However, travel between job sites after work has begun for the day is compensable. 29 C.F.R. § 785.38.

Workers May Be Entitled To Pay For Time Waiting to Work

Published on: February 15, 2013 | by Martin & Martin, LLP

Employers sometimes require employees to show up at one job site to pick up materials and head to a second job site but the employer only starts paying the employees when they start working at the second job site. Or employers may make employees wait while equipment is being fixed but not pay the employees while they wait. Employees then wonder whether they are owed pay for this “wait time.” While the Fair Labor Standards Act’s (“FLSA”) rules on “wait time” can sometimes be confusing the basic rule is that if the time spent waiting is for the employer’s benefit and the employee cannot use the waiting time for their own benefit then the wait time is compensable under the FLSA and the employee must be paid.

Courts apply a two part test in determining whether wait time is compensable: (1) whether wait time is predominantly for the employer’s benefit; and (2) whether the employees can effectively use the waiting time for their own benefit. Time spent waiting for an employer’s call to duty may be compensable under the FLSA. The distinction between compensable and non-compensable time is drawn this way: a worker who is “engaged to be waiting” is entitled to compensation while a worker who is “waiting to be engaged” is not. The inquiry is whether “the time is spent predominately for the employer’s benefit or for the employee’s.” One court found that “employers must compensate employees for time spent waiting and traveling when ‘it is part of a principal activity of the employee, but not if it is a preliminary or postliminary activity.'” (quoting The Portal to Portal Act, 29 U.S.C. § 254). Preliminary and postliminary activities “are spent primarily for the employees’ own interests, completed at the employees’ convenience, and not necessary to the employer’s business.”

An employee is on duty, is engaged to wait, where “waiting is an integral part of the job.” 29 C.F.R. § 785.15. An employee is off duty, is waiting to be engaged, where he is “completely relieved from duty” and where the time period is “long enough to enable him to use the time effectively for his own purposes.” 29 C.F.R. § 785.16(a). However, an employee “cannot use the time effectively for his own purposes unless he is definitely told in advance that he may leave the job and that he will not have to commence work until a definitely specified hour has arrived.” Id.