Can I Sue My Employer for Unpaid Overtime?

Can I sue my employer for unpaid overtime?  If you are a non-exempt employee and have worked over 40 hours in a workweek in the last 3 years, the answer is “yes.”

First, the laws on overtime make it very easy for you to sue – even if the amount of your recovery is relatively small. 

First, you can go back for 3 years.      

Second, the law requires your employer to keep accurate records about your work.  If you employer did not keep accurate records, your own record or recollection may be used to calculate your overtime.

Third, you will normally receive double the amount of your overtime claim.

Lastly, you pay nothing.  The law requires the employer to pay your costs and attorney’s fees.

Illegal Deductions Violate Minimum Wage Law

The U.S. Labor Department says Windy City Doc Holding LLC, which owns the Metro Diner's franchises in Jacksonville Beach and Ponte Vedra Beach, made illegal deductions from workers’ pay when it charged servers for their uniforms, which resulted in them earning less than the legally required federal minimum wage of $7.25 per hour in the weeks that they paid for those items. The practice of sharing the tips of tipped employees at the beaches restaurant with non-tipped workers, such as dishwashers, also contributed to the minimum wage violations for affected servers. The restaurant also calculated overtime incorrectly when it based servers’ overtime rates on time and a half of their direct cash wages, rather than basing it on the full minimum wage, as required. According to Daniel White, district director for the Wage and Hour Division in Jacksonville : “Restaurant workers are among the most vulnerable that we see,” “Violations such as those found in this case are all too common. When these workers aren’t paid every penny they have rightfully earned, it harms not just the workers, but their families, and their communities. We will continue our enforcement in this industry, along with our education and outreach activities, to ensure that workers are paid what they’ve earned, and to level the playing field for employers who play by the rules.”

Misclassification of Independent Contractors

According to the U.S. Department of Labor, the misclassification of employees as independent contractors presents one of the most serious problems facing affected workers, employers and the entire economy. Misclassified employees are denied critical benefits and protections to which they are entitled, such as the minimum wage, overtime compensation, family and medical leave, unemployment insurance, and safe workplaces. Moreover, employee misclassification generates substantial losses to the federal government and state governments in the form of lower tax revenues, as well as to state unemployment insurance and workers’ compensation funds. Individual taxpayers are hurt by this practice. Video: Am I an Independent Contractor or an Employee?

Misclassification of Workers as "Independent Contractors"

Of the principal objectives of most American companies, cutting costs and increasing profits rank high on the list. In their attempts to cut costs, many companies today are classifying their workers as “independent contractors” as opposed to “employees.” This classification eliminates such costs as: overtime pay, health insurance, social security benefits, workers compensation insurance – the list goes on. In addition, workers who are classified as independent contractors have no protection from numerous worker rights statutes. Recently, the U.S. Department of Labor filed an action in U.S. District Court, Middle District of Florida against Caring First, Inc. under the Fair Labor Standards Act. The lawsuit contends that Caring First, Inc. misclassified certain of their employees, including their licensed practical nurses and registered nurses, as “independent contractors” and paid them a flat hourly rate, regardless of the number of hours worked per week. Simply put, this lawsuit alleges that Caring First classified nurses as independent contractors to avoid paying them overtime as is required by federal law. Research indicates that this action is widespread.

Cheddar's Casual Cafe Plagued by Minimum Wage Lawsuits

Recently, Cheddar's Casual Cafe has been plagued by minimum wage lawsuits brought by current and former servers for violations of the Fair Labor Standards Act. In consolidated lawsuits filed by former employee/servers of Cheddar’s Casual Café in Tampa Florida federal court, it was alleged that the national chain violated the Florida Minimum Wage Act (“FMWA”) and the Fair Labor Standards Act (“FLSA”) by: (1) failing to pay them for all hours that they worked; (2) improperly utilizing the tip credit; (3) failing to pay them overtime; and (4) improperly engaging in tip pooling. The former employees also alleged that that Cheddar’s Casual Café improperly took a tip credit from their wages for time spent performing related, non-tipped work. The former servers listed various examples of the related, non-tipped work that they were required to do, which they referred to as “side work.” The former employees also alleged that Cheddar’s Casual Café regularly and consistently required them to perform “side work” including restocking supplies, stocking ice, sweeping floors, stocking food/condiments on the expo line, brewing tea and coffee, running food to tables for other servers, wiping down/washing trays, stocking lemonade mix, unclogging drains, cleaning soft perform side work before, during, and after their shifts and that the side work exceeded 20% of the time spent working.

In addition to the side work, the workers alleged that Cheddar’s Casual Café required them to perform tasks belonging to an entirely different category of employment that was unrelated to and not incidental to tipped service. The former employees referred to this type of work as “dual occupation” work, which includes maintenance, cooking, and cleaning. As a result, the former employees contend that Cheddar’s Casual Café owes the full minimum wage (without regard to a tip credit) for the time that they spent performing the dual occupation work.

Following an earlier investigation by the U.S. Department of Labor’s Wage and Hour Division, Cheddar’s Casual Cafe Inc. paid $99,168 in back wages and $62,417 in liquidated damages to 268 current and former employees of Cheddar’s restaurants in Oklahoma City, Okla., and Lubbock, Texas, under the terms of a consent judgment. The chain will pay an additional $166,620 in civil money penalties for child labor violations, as well as for willfully and repeatedly violating the Fair Labor Standards Act’s minimum wage and record-keeping provisions.

An investigation led by the Wage and Hour Division’s Dallas District Office found that managers recorded fewer hours in the payroll system than employees actually worked, tipped employees did not take home the required federal minimum wage, and managers did not compensate employees for attendance at mandatory meetings and training.  Cynthia Watson, the Wage and Hour Division's regional administrator in the Southwest, stated: “The Labor Department will hold employers accountable when they do not properly pay their workers and put young employees in danger by allowing them to perform hazardous jobs.”
The consent judgment was filed with the U.S. District Court for the Northern District of Texas, Dallas Division. In addition to requiring back wages and damages, the judgment will enjoin the company from future FLSA violations.

Employees who are covered by the FLSA must receive at least the federal minimum wage of $7.25 for all hours worked. In Florida, the current minimum wage is $7.93. Tipped employees must be paid a cash wage of at least $2.13 per hour, and the cash rate when combined with their tips must total at least $7.25 per hour. Additionally, employers must maintain accurate time and payroll records for all workers.

Do you have a claim for unpaid wages against Cheddar's Causal Cafe?

Rulings go against employers using 'fluctuating' workweeks to cut overtime costs

Here's the rule: If someone works more than 40 hours, their salary covers the first 40 hours and overtime is to be factored at that salaried rate.

But employers often try to reduce their costs by using what is called a "fluctuating work week," in which workers receive their salary over the entire week -- no matter how many hours long that week is -- and then overtime is calculated on one hour of that longer week.

Two recent federal cases, however, have helped tilt the playing field in favor of Pennsylvania workers and the traditional overtime calculation.

Here's how the math shakes out: If a worker gets a weekly salary of $400, under Pennsylvania law that means the wage is $10 an hour for a 40 hour week. So the worker who earns $400 a week, and works 10 hours of overtime, should be paid an extra $150 (time and a half) for the extra 10 hours, for a total of $550 that week.

Under the same scenario, with a fluctuating work week, that base salary would be tabulated $8 at an hour -- $400, divided by 50 hours worked. Overtime would then be calculated at a time-and-a-half rate, or 150 percent of the $8 hourly rate, meaning overtime wages are $12 an hour, not $15. The result is that an employee on a "fluctuating work week" would be paid $440 total -- $320 in "regular" wages, and $120 in overtime, but just $40 "extra" that week.

Drivers for Frito-Lay, those people who move the bags of Doritos into the stores and arrange the shelves, were being paid by the fluctuating workweek standard, and sued claiming that Frito-Lay violated the Pennsylvania Minimum Wage Act of 1968.

The case was heard by U.S. District Judge Joy Flower Conti, who ruled in 2011 that the workers were covered by Pennsylvania Minimum Wage Law that prohibits the fluctuating workweek for workers who aren't paid by the job or the day.

And Judge Conti's decision was cited in an August 2012 decision by U.S. District Judge Cathy Bisson in a case against Kraft Foods Global Inc., in which Kraft admitted to paying employees only half-time for extra hours work with that half being the determined by the base pay divided by the total number of hours worked that week.

Joe Fieschko, the attorney who represented the Frito-Lay workers, said the fluctuating workweek model is popular among employers who want to save money.

"The thing about this fluctuating workweek is the longer you work, the less you are paid," he said.

Under the fluctuating workweek model, if an employee is paid $400 for the week, then for a 40 hour week his compensation would be $10 an hour. But, once that employee works more, the base hourly rate goes down.

At 50 hours that base rate drops to $8. And if the employee worked double an average week -- 80 hours -- the compensation would conceivably drop to base rate of $5 an hour (which would be below the minimum wage of $7.25 an hour) for all of the hours. The overtime pay would be $7.50 an hour (an extra $2.50 tacked on to the second 40 hours) for a total of $500 for the week.

The fluctuating workweek is allowed under the U.S. Fair Labor Standards Act, which used to cover the drivers when they were under the Federal Motor Carrier Act. That law still covers long-haul truckers and drivers of large trucks, but it no longer applies to short-route drivers of smaller delivery trucks.

While federal law allows employers to use the fluctuating workweek model, Judge Bisson was clear that Pennsylvania law does not.

"Had the Pennsylvania regulatory body wished to authorize one-half-time payment under [the law], it certainly knew how to do so," she wrote.

It's not just trucking companies that have tried to use fluctuating workweeks to reduce overtime costs.

Mr. Fieschko also has successfully represented insurance adjusters, warehouse workers and park rangers who worked at Fort Necessity and at the Friendship Hill National Historic Site's Albert Gallatin house.

This isn't a new technique -- employers have been trying to make workers put in more hours, for less money, for decades. Mr. Fieschko said a lot of the case law goes back to 1938, 1939 and 1940, as courts ruled against the employers of that day who were testing the original version of the Fair Labor Standards Act.

By Ann Belser, Pittsburgh Post-Gazette

For more information about Overtime, visit Orlando Overtime Pay.

Florida Minimum Wage Act Provides for Personal Liability

The Florida Minimum Wage Act (FMWA) allows a private cause of action against an employer for state-regulated minimum wage and functions analogously to the federal Fair Labor Standards Act ("FLSA"). This Act is cofiied in Section 448.110 of the Florida Statutes and currently sets Florida’s minimum wage at $7.67 per hour . The federal minimum wage is currently $7.25 per hour. As defined by the FLSA, an employer includes "any person acting directly or indirectly in the interest of an employer in relation to an employee . . . ." 29 U.S.C. § 203(d). An officer of a corporation is deemed an "employer" within the meaning of the FLSA and is personally liable under the FMWA if the officer was either “involved in the day-to-day operation" or had “some direct responsibility for the supervision of the employee." Patel v. Wargo, 803 F.2d 632, 638 (11th Cir. 1986).

For more information about minimum wage and overtime, visit us at: Orlando Overtime Pay.