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Certain types of
violations of wage and overtime laws are typical in certain
industries. And despite many lawsuits in these industries,
violations of Wage and Hour Laws (including the FLSA) seem to
continue. Below is a list of some of the industries and/or
occupations where these typical FLSA violations occur more
frequently. This list is not exhaustive and there are many other
industries and occupations where employees are commonly deprived of
their rightful regular and overtime wages.
Cable and line
installers are frequently treated as independent contractors,
even though they work for a single company exclusively, receive pay
set by that company, and have no opportunity to increase income
other than by working longer hours. The fact that the company pays
such workers as an independent contractor and reports such pay on an
IRS Form 1099, does not make this pay practice legal. If installers
work more than 40 hours in a week and are not paid overtime premium
pay at the rate of time and one half, there may be a valid claim for
back pay and an equal amount in liquidated damages.
Satellite TV
installation technicians around the US have brought suit for having
been forced to work overtime hours but record less than forty hours
on their time sheets. For example, DirecTV installation
subcontractors have been sued by technicians in many jurisdictions
for requiring installers to work “off the clock” without paying time
and one half for overtime hours.
Call center employees
(e.g., customer service representatives and telemarketers) are
frequently required to perform uncompensated work before and after
their scheduled shifts. Call center employees are often required or
encouraged to be on the phone for all or nearly all of their clock
hours. As a result, time spent preparing to get on the phone, such
as turning on the computer, reading emails or daily instructions,
and completing paperwork is not compensated. The FLSA requires that
employers pay employees for all hours worked.
Car mechanics are
frequently paid either a salary, job rate, or an hourly rate. There
is no overtime exemption for auto mechanics outside of a
dealership and so mechanics must be paid time and one half for all
hours over forty in a work week. Some auto dealership mechanics may
be exempt, however.
CHEMICAL PROCESSING
PLANTS' EMPLOYEES
Employees working in
Federal facilities or private chemical plants usually have to don
safety gear and/or change clothes and shower before leaving. These
are similar to meat/poultry processing plants. Employees are not
paid all hours works, including hours spent on pre- and
post-shift time for donning and doffing safety gear, change
clothes, and/or shower.
COMMISSION ONLY PAID
EMPLOYEES
Mortgage originators,
financial service representative, stock/investment sales
representatives (often called "loan officers", "account executives",
or other titles), are routinely paid on commission-only, or
commission plus draw, or even a salary basis. Mortgage sales staff,
who work from call centers are generally not exempt under any
FLSA exemption. Even loan officers who are considered to be outside
sales staff are frequently not exempt from the FLSA overtime pay
requirement. Despite years of back pay lawsuits, these industries
continue to fail to abide by their obligation to pay loan officers
(and other similar financial industry employees) overtime as the law
requires.
CONSTRUCTION WORKERS
Typical problems
include: (1) Failure to record all hours worked to include
time spent working before or after the shift. (2) Shorting of
hours by using terms such as down time or rain delay. (3) Failure to
compensate for meal breaks where the employee is not
completely relieved of all duties to enjoy uninterrupted time for
the meal. (4) “Banking” of overtime hours or payment of overtime in
the form of “comp time.” (5) Failure to combine the hours
worked for overtime purposes by an employee in more than one job
classification for the same employer within the same workweek. (6)
Failure to segregate and pay overtime hours on a workweek basis when
employees are paid on a bi-weekly or semi-monthly basis. (7) Failure
to pay for travel from shop to work-site and back.
On August 10, 2005,
Congress changed the overtime law for drivers of vehicles with a
Vehicle Gross Weight Rating of 10,001 lbs. or less. Drivers of these
vehicles were generally exempt from the federal overtime law prior
to August 2005 (if they carried goods across state lines, or if the
goods originated out of state), but now these drivers are not exempt
and are covered by the federal overtime law. This change in the law
will have a very significant impact for Route Delivery Drivers (for
example, Newspaper Route Drivers and sales managers who oversee
drivers but also handle routes) and repairpersons (those who carry
parts that originated out of state). This change in the law is one
of the most positive developments in overtime law in the last two
decades. It has gone largely un-noticed in the press and by
employers, who may continue to believe that drivers of these
vehicles are exempt, simply because they are carrying goods which
originated out of state.
Employers who provide
home health care services for individuals who (because of age or
infirmity) are unable to care for themselves may or may not be
required to pay minimum wage and/or overtime premium pay depending
upon the type of services provided and the nature of the working
relationship. Employees providing “companionship services” as
defined by the FLSA need not be paid the minimum wage or overtime.
Trained personnel such as nurses, whether registered or practical,
are not exempt from minimum wage or overtime under the exemption for
companions, but registered nurses may be exempt as professionals.
Certified nurse aides and home health care aides may be considered
exempt from the FLSA's wage requirements depending upon the nature
of their work.
Persons employed in
domestic service in households are covered by the FLSA.
Certified nurse aides, home health care aides, and other
individuals providing home health care services fall within the term
“domestic service employment.”
An employee who performs
companionship services in or about the private home of the person by
whom he/she is employed is exempt from the FLSA's minimum wage and
overtime requirements if all criteria of the exemption are met.
“Companionship services” means services for the care, fellowship,
and protection of persons who because of advanced age or physical or
mental infirmity cannot care for themselves. Such services include
household work for aged or infirm persons including meal
preparation, bed making, clothes washing and other similar personal
services. General household work is also included, as long as it
does not exceed 20 percent of the total weekly hours worked by the
companion. Where this 20 percent limitation is exceeded, the
employee must be paid for all hours in compliance with the minimum
wage and overtime requirements of the FLSA.
The term “companionship
services” does not include services performed by trained
personnel such as registered or practical nurses. Registered nurses
may be exempt from overtime through professional exemption.
However, individuals other than trained personnel (such as nurses)
who attend to invalid infants and young children are considered
companions, rather than babysitters, and their status may thus be
within the companion exemption.
An employee who provides
care and protection for minor children, where the children
are not physically or mentally infirm, must be paid the minimum wage
and proper overtime compensation. This activity would not constitute
exempt companionship services.
HOME WORKERS
Under the FLSA,
industrial homework (as defined in Reg. 530.1(d)) means the
production by any person in or about a home, apartment, tenement, or
room in a residential establishment, of goods for an employer who
suffers or permits such production, regardless of the source
(whether obtained from an employer or elsewhere) of the materials
used by the home worker in such production. Examples of work
performed by home workers are: a person who sews at home; a person
hired to do data processing at home; a person who is hired to do
telephone surveys from their home; a person who manufactures jewelry
at home; a person who ties fishing flies at home; a person who does
bookkeeping, payroll or other clerical work at home.
Many employers
improperly treat home workers as “independent contractors.”
Employers fail to assure that home workers paid on piece rate basis
have earned the minimum wage. The employer must bear the
cost of tools purchased as well as tool maintenance and repair
to the extent that these costs cut into the minimum wage or overtime
wages required.
HOTELS AND MOTELS
Employees placed
on salary and classified as exempt without regard to the duties
performed. Failure to record and pay employees for all hours
suffered or permitted to be worked. Illegal deductions
from pay for items like cash register shortages, uniforms, errors,
bad checks, etc. Failure to pay the correct overtime rate to
tipped employees, or failure to pay the correct overtime rate
that includes all service charges, commissions, bonuses and all
other remuneration.
Paying straight
time for hours worked beyond 40 per week instead of required
overtime pay, or averaging the number of hours worked over two or
more weeks to avoid overtime pay.
Employees who work in
manufacturing, processing, and distributing establishments
(including wholesale and retail establishments) that produce,
handle, or work on goods for interstate or foreign commerce are
included in the category of employees engaged in the production of
goods for commerce. The minimum wage and overtime pay provisions of
the FLSA apply to employees so engaged in the production of goods
for commerce.
Employers fail to count and pay for all hours as work time
such as time spent oiling, greasing, cleaning or installing machines
at the start or end of the workday; time spent in travel from job
site to job site; or time spent at a designated place to receive
instructions or to pick up and carry tools to a designated place.
Employees are sometimes treated as exempt simply because they
have impressive titles or are paid on a salary basis.
Meat processing
facilities frequently fail to comply with the FLSA. Typically,
employers fail to pay employees for the time spent donning and
doffing required sanitation gear and personal protective
equipment. Employers in the meat processing industry must capture
and pay employees for all time spent donning and doffing
required sanitary/safety gear and equipment. These employers must
also pay for all the related walking and waiting time as well as
other related duties (such as sharpening knives or sanitizing
equipment). Employers in this industry also frequently fail to pay
their employees for production work, and donning and doffing,
performed during their meal periods.
Mechanical/Electrical/Structural Designers-Detailers-Draftsmen,
employees who make fabrication drawings from information provided by
engineers or other professionals, are generally not exempt
from the FLSA’s overtime requirements. In some industries, such as
the oil and gas industry, many employers pay employees in these
positions on a salary basis and do not pay overtime.
Registered nurses
may or may not be entitled to overtime pay
to qualify for the learned professional exemption, all of the
following tests must be met: The employee must be compensated on a
salary or fee basis and The employee’s primary duty must be
the performance of work requiring advanced knowledge, defined
as work which is predominantly intellectual in character and which
includes work requiring the consistent exercise of discretion and
judgment; The advanced knowledge must be in a field of science or
learning; and The advanced knowledge must be customarily
acquired by a prolonged course of specialized intellectual
instruction.
Registered nurses
who are paid on an hourly basis should receive overtime pay.
However, registered nurses who are registered by the appropriate
State examining board generally meet the duties requirements for the
learned professional exemption, and if paid on a salary basis, may
be classified as exempt.
LPNs are generally Entitled to Overtime Pay
Licensed practical
nurses and other similar health care employees, however, generally
do not qualify as exempt learned professionals, regardless of work
experience and training, because possession of a specialized
advanced academic degree is not a standard prerequisite for entry
into such occupations, and are entitled to overtime pay.
NURSING
CARE/RESIDENTIAL CARE FACILITIES
The most common
violation in the nursing care industry is the failure of employers
to pay for all hours worked. This uncompensated time most
frequently occurs when employers fail to pay for work performed:
before and after a worker's scheduled shift; during an employee's
scheduled meal period; and while employees are attending
staff meetings and compensable training sessions.
Minimum wage and
overtime pay violations also occur when employers make deductions or
demand reimbursement for the cost of required uniforms or
equipment.
Yes, the FLSA applies to
professional offices too, e.g., doctors, lawyers, accountants, etc.
Typical violations in professional offices include: (1) Paying
non-exempt employees a salary and not paying time and
one-half for hours over 40 a week, (2) not paying employees for
all hours they work, e.g., reporting early or working through
lunch break or staying late without being paid for such extra time,
(3) not paying for the time employees spend performing work at home
or not including such hours for overtime purposes.
RETAIL/SERVICE INDUSTRY
FLSA, Section 7(i),
exempts certain employees of retail and service establishments who
are paid on a commission basis in whole or part from the FLSA's
overtime pay regulations. There are two requirements for a business
to be considered a "retail or service establishment": 1.
Seventy-five percent (75%) of the annual dollar volume of the sales
of goods or services (or of both) come from sales that are not
resale; and 2. The sales of goods or services (or of both) are
recognized as retail sales in the particular industry.
Some examples of
establishments which may be retail are: automobile repair shops,
bowling alleys, gasoline stations, appliance service and repair
shops, department stores and restaurants. Some examples of
establishments which are not retail are: accounting firms, medical
and dental clinics, construction companies, and radio and television
stations.
For retail or service
employer to be exempt from overtime for commissioned employees,
three conditions must be met:
1. The employee must be
employed by a retail or service establishment; and
2. The employee's
regular rate of pay must exceed one and one-half times the
applicable minimum wage for every hour worked in a workweek; and
3. More than half the
employee's total earnings in a representative period must consist of
commissions on goods or services.
Employers must record
and pay for all hours worked by employees including any time
controlled by the employer, such as time spent “engaged to wait.”
Where employees report to work at their scheduled time, the employer
must begin counting that as work time. If the employees are told to
wait until they are needed, and are not given a specific report-back
time that is long enough to use for their own benefit, all of the
waiting time is to be counted as hours worked.
Deductions made
from employees’ wages for such items as cash or merchandise
shortages, required uniforms, and tools of the trade are not
legal to the extent that they reduce the wages below the statutory
minimum wage or reduce the amount of overtime pay.
Often, in retail
businesses, salaried employees do not meet all the
requirements specified by the regulations to be considered as
exempt from overtime pay.
SECURITY GUARD/JANITOR/MAINTENANCE SERVICE INDUSTRY
The security guard
service industry includes those firms that provide protection to
firms or individuals. Normally, the guard obtains a State license
which is portable from firm to firm. The guards cover a post daily
and are usually paid on an hourly basis.
Security Guard Firms:
The security guard cannot bear the cost of the uniform, gun,
whistle, belt, and other employer/industry required tools if by
purchasing them he/she receives less than the applicable minimum
wage or such purchasing would cut into any overtime wages earned.
This applies whether she\he buys the uniform directly or if it is
sold to the employee by the firm.
The cost of dry cleaning the uniform cannot be borne by the employee
if in doing so he/she receives less than the minimum wage or the
costs would cut into any overtime wages.
Overtime must be
calculated on a workweek basis, and the hours cannot be averaged
over a two week period. The hours worked by guards in more than
one post in the same week must be counted together for overtime
purposes. Travel time between work sites must be treated as
hours worked.
The maintenance service
industry includes those firms that provide janitorial services in
general. Normally, the firm provides the necessary materials to do
the cleaning. The employees generally perform work at one or more
locations during the work shift.
Industrial/Maintenance Service Firms: Every person who works
must receive payment. If a man and wife team, and/or other family
members work together, each member of the team must be carried on
the payroll and each must receive proper compensation for their
hours worked. Overtime must be paid after 40 hours of work in
the workweek to all non-exempt employees regardless of the method of
compensation, i.e., hourly, piece rate, task basis, salary, etc.
The hours worked by a janitor who works in more than one
establishment must be counted together for overtime purposes.
State and local
government employers consist of those entities that are defined as
public agencies by the FLSA. “Public Agency” is defined to mean the
Government of the United States; the government of a State or
political subdivision thereof; any agency of the United States, a
State, or a political subdivision of a State, or any interstate
governmental agency. The public agency definition does not extend to
private companies that are engaged in work activities normally
performed by public employees. Section 3(s)(1)(C) of the FLSA
covers all public agency employees of a State, a political
subdivision of a State, or an interstate government agency.
Tipped employees are
those who customarily and regularly receive more than $30 a month in
tips. Tips actually received by tipped employees may be counted as
wages for purposes of the FLSA, but the employer must pay not less
than $2.13 an hour in direct wages.
If an employer elects to
use the tip credit provision the employer must:
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Inform each
tipped employee about the tip credit allowance (including amount
to be credited) before the credit is utilized.
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Be able to
show that the employee receives at least the minimum wage when
direct wages and the tip credit allowance are combined.
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Allow the
tipped employee to retain all tips, whether or not the employer
elects to take a tip credit for tips received, except to the
extent the employee participates in a valid tip pooling
arrangement.
If an employee's
tips combined with the employer's direct wages of at least $2.13 an
hour do not equal the minimum hourly wage ($7.25 an hour) the
employer must make up the difference.
Many employers, e.g.,
limousine drivers, do not ensure that tips are sufficient to
make up difference between employer's direct wage obligation and the
minimum wage; employee receives tips only -- so the full minimum
wage is owed; illegal deductions for walk-outs, breakages and
cash register shortages; and invalid tip pools.
Failure to pay
overtime on the full minimum wage; failure to pay overtime on
the regular rate including all service charges, commissions, bonuses
and other remuneration.
Many employers don’t pay
the employees for the time they are waiting to do the tasks
that employer wants. For example, limousine drivers waiting to
pickup a customer, or time spent cleaning the car or workstations,
etc.
Technologists and technicians, such as engineering technicians,
ultrasound technologists, licensed veterinary technicians, avionics
technicians and other similar employees are not exempt under Section
13(a)(1) from the minimum wage and overtime requirements of the FLSA
because they generally do not meet the requirements for the learned
professional exemption.
Technologists and
technicians do not meet these requirements for the learned
professional exemption because they do not work in occupations
that have attained recognized professional status, which requires
that an advanced specialized academic degree is a standard
prerequisite for entrance into the profession.
The wholesale industry
is characterized by the sale of goods for resale, rather than sales
to the ultimate consumer. The warehouse industry includes central
warehouses for a business enterprise, public warehouses, and storage
establishments.
There are some problems
and misconceptions which Wage and Hour investigations commonly
disclose in the wholesale and warehouse industry. These include:
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The
misapplication of the executive or administrative
exemptions to non-exempt persons, such as clerical workers,
working foremen, dispatchers, and inside salespersons.
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The
misconception that salaried employees need not be paid overtime.
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Failure to
pay employees for all hours suffered or permitted to work,
including time spent taking inventory, completing paperwork,
etc. beyond the normal schedule.
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Giving
compensatory time off in lieu of overtime pay.
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Considering
certain employees to be “contract labor.”
If you believe you may have a wage and hour claims,
questions, or concerns,
Please feel free to
contact us
at:
1-888-MYWAGE-2
(888-699-2432) or 801-269-9541
or Email us at:
sharon@sharonprestonlaw.com
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