Category: Unpaid Overtime

Overtime Violations: More Common Than You Think!

Overtime violations are more common than you think. Every year, thousands of overtime payment violations are reported to government agencies – and that doesn’t count all the cases that aren’t reported. In the last year, the federal Wage and Hour Division by itself has cited more than 7,300 wage violations. In 2012 and 2011, there were more than 13,000 violations found by the department each year.

If you work in a lower-wage industry, you are even more likely to be affected. In 2008, the Wage and Hour Division calculated the violations and picked out the top wage-violation industries: restaurants, garment manufacturing, agriculture, hotels and motels, janitorial services, temp work, guard services, and health care.

A few examples:

• Since 2000, Subway restaurants have had to pay back wages for overtime violations more than 800 times.

• McDonalds has done slightly better, only being caught 300 times since 1985.

• Day care services have been major violators, having to pay back wages for overtime violations in more than 2000 cases since 2000.

• Doctor’s offices are another hotspot for overtime violations. One healthcare company in Massachusetts had to pay nearly $3 million dollars to employees for unpaid overtime in 2009. Not so Prime

The United States Supreme Court has agreed to hear a case from former warehouse employees. The suit alleges that under the Fair Labor and Standards Act (FLSA), must compensate their warehouse employees for the time spent waiting for a security check at the end of their shifts.

As part of an anti-theft procedure, Amazon employees from Nevada had to wait at the end of their shifts to pass through a security check before being able to leave the premises. These checks took up to thirty minutes a day and were uncompensated. The U.S. Court of Appeals for the 9th Circuit ruled that suit could move forward in April 2013.

Integrity Staffing Solutions, Inc., the third party staffing company involved in the Nevada case, is being represented by former U.S. solicitor general Paul Clement. Clement argues that time spent waiting for security checks is comparable to other post-work duties that are not compensated for, such as walking to one’s car in the parking lot or waiting to clock out.

If heard by the Supreme Court and ruled like the 9th Circuit, this case could possibly invite a wave of other related cases.

Differences Between Employees and Independent Contractors

How do you know whether you are entitled to employee protections under California law such as overtime, meal periods and rest breaks, among other things?  The answer depends on whether you are considered an employee or independent contractor.

In order to be viewed as an employee, there needs to be an employer-employee relationship.  There are several factors that courts weigh to determine whether a person is an employee or independent contractor.  The primary factor courts consider is whether the individual or company has the right to control the manner and means in which the worker performs his job.  Other factors include (1) whether the worker is involved in his own enterprise independent of that of the individual or company, (2) whether the work performed by the worker is part of the regular business of the individual or company, (3) whether the individual or company provides the worker with instruments and equipment necessary to perform the essential functions of the position, (4) how long the working relationship is expected to last, and (5) how the worker is paid.

There is a strong presumption that workers are employees, which means the individual or company has the heavy burden of establishing the above factors.

A big misnomer is you are an independent contractor if the individual or company tells you that you are.  The fact a worker may be treated like an independent contractor is of no significance in determining employment status.  Even if a worker receives an IRS Form 1099 from the individual or company, which form is usually provided to independent contractors, this does not confirm that a worker is actually an independent contractor.

If you have any questions or would like more information on this topic, please contact the attorneys at Aegis Law Firm, PC.

Oakland Raiders Cheerleaders Sue for Wages

The Oakland Raiders have something more to worry about than just their last place standing in the AFC West Conference. Their cheerleaders have banded against them. The Raiderettes, as they are fondly known, are suing the Raiders for a variety of wages claims, including failure to pay all earned wages, failure to reimburse business expenses, and perhaps even minimum wage.

Lead plaintiff, “Lacy T.” alleges that the Raiders hold the cheerleaders’ pay until the end of season, and when they do get paid, not all hours worked are reflected in their compensation. Additionally, the women have to pay for their own make –up and hairstyling, two services that are mandated by the Raider’s Club, but are expected to pay for it themselves.  These expenses are cost upwards of $500. On top of those expenses, the Raiderettes must pay for their own traveling expenses to away functions and other work-related events like photo shoots.

The suit alleges that the women of the team only receive a yearly payment of $1,250, which is comically below the minimum wage. As Lacy T. states, “I love the Raiders and I love being a Raiderette, but someone has to stand up for all the women in the NFL…”

If You’re Not Salaried, You’re Not Exempt

Although most of the focus in determining whether an employee is exempt from the requirements of overtime and meal and rest periods is usually focused on the duties the employee performs, California’s Sixth Appellate District recently reminded us that there is another, equally important factor to consider.  In order to be “exempt,” an employee must be paid “a monthly salary equivalent to no less than two times the state minimum wage for full-time employment.” Continue reading “If You’re Not Salaried, You’re Not Exempt”