Author: Gilbert McWherter Scott Bobbitt PLC

“Off the clock” violations really occur primarily in four areas. One is during lunch: employees aren’t able to take their meal breaks, and they’re automatically deducted 30 minutes or an hour for their meal break even though they’re working. We also see that before the shift, when they have to come in early and aren’t paid for it; after the shift, when they stay late and aren’t paid for it; and with technology, we’re increasingly seeing off the clock violations take place away from the work place. Employees are working on their smartphones, they’re working on their computers, and they’re contributing to the work of the employer, but they’re not getting paid for their time.

You’re entitled to pay for the work you do

In the simplest of terms, you have the right to be paid by your employer for your work. Under the Fair Labor Standards Act (FLSA), “’hours worked’ includes all time an employee must be on duty, or on the employer’s premises or at any other prescribed place of work. Also included is any additional time the employee is allowed (i.e., suffered or permitted) to work” (emphasis ours)

That means if you are working while you are technically off the clock, but your employer allows you to do so, and accepts the work that you do, you may be able to make a claim for compensation for those hours.

At the Gilbert Firm, we advocate on behalf of Tennessee employees to ensure that you are given what you have earned. Learn more about FLSA violations, or to speak with a Tennessee wage and hour lawyer like Michael Russell or Clint Scott, we invite you to call 888.996.9731, or to fill out our contact form. The Firm maintains offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville for your convenienc

School is back in session, which means students – most likely finishing up high school or enrolled in college – are going to start thinking about internships soon, if they haven’t secured one already. There are a lot of benefits to taking on an internship in the field you wish to pursue, but as any student living on a tight budget will tell you, the “unpaid” part of the internship can make things pretty difficult.

The issue of “to pay or not to pay” made headlines in the end of August, when it was revealed by a blog post that Ivanka Trump does not pay her interns. The reaction was swift: within days, there were articles and social media posts about whether or not she was breaking the law, or whether she owed her interns money, and so on.

But does she? There are regulations in place in regards to unpaid internships. These regulations were created by the Department of Labor’s Wage and Hour Division to protect interns from less scrupulous employers. Under the law, “the determination of whether an internship or training program [is excluded from paying participants] depends upon all of the facts and circumstances of each such program,” and is judged by the following criteria:

1. “The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.”

Some courts apply the Department of Labor’s test, while others use a slightly different standard. Regardless, employers do not have a free pass to classify all of their college workers as “unpaid interns.”

Is the employer in violation of the law?

While the criteria for unpaid internships is fairly straightforward, that does not mean employers do not take advantage of unpaid interns. There are certainly enough stories about interns running around for dry cleaning or picking up coffee, or contributing more than their fair share to projects for which they are not paid, but which helps the company in some way. Some interns may be content to let the “gophering” slide, as picking up a coffee seems (to them) a fair trade for the skills, experience and knowledge they obtain in return,

And therein lies the rub: unpaid internships are supposed to, at heart, teach their interns. They are designed to help people get a leg-up by offering real work experience. But they also allow the intern to make mistakes and to grow along the way. If a company chooses not to bring on employees or contractors for a project, and instead relies on interns as a source of free labor, then those interns are no longer learning: they’re working. And people who work for a company deserved to be paid by that company for their efforts. If your job at your internship is limited to getting coffee, and you are not studying to be a barista or a server, then you may have a wage and hour claim.

The truth is, it can be hard to tell whether or not you are being taken advantage of by the boss. Luckily, unpaid interns do have options available to them if the company has violated the law. At the Gilbert Firm, we handle complex cases of FSLA violations throughout Tennessee, and have experience helping unpaid internships collect their due. To reserve an appointment with Michael Russell or Clint Scott, or to find out more about our services, please contact our firm or call 888.996.9731. An experienced Tennessee wage and hour attorney from the Gilbert Firm can protect your rights.

Let us start with this: yes, there is a wage gap in this country between men and women, and yes, there are laws in place to help prevent that gap. But over and over we have seen women routinely denied their fair share of pay and compensation for doing the same jobs men do every day. If the current laws and threats of punishment are not working, what steps can we take to eliminate that gap once and for all?

Massachusetts has an idea. As the New York Times describes it, “In a groundbreaking effort to close the wage gap between men and women, Massachusetts has become the first state to bar employers from asking about applicants’ salaries before offering them a job. The new law will require hiring managers to state a compensation figure upfront — based on what an applicant’s worth is to the company, rather than on what he or she made in a previous position.”

What the new law intends to do, is effectively end the wage gap “trap” that so many women fall into: if a woman employee is paid a certain amount at her last position, that number cannot, as the Times puts is, “follow them for their entire careers.” This is because hiring managers may choose to pay a woman a commensurate salary to what she was making in her last position (and a man what he made in his), thus perpetuating the wage gap in the new company. By eliminating this step, and forcing all employers to start at what their employees are worth as opposed to what they made, there is a real chance for all employees to be paid a true, equal salary.

But will it work?

This, of course, remains to be seen, as the law only went into effect in July of 2016. There is still the chance that employers may take male candidates’ salary requirements more “seriously,” or simply offer less to female candidates than their male counterparts. This is, however, illegal under the Equal Pay Act, a division of the Fair Labor Standards Act, that mandates men and women be paid equally for comparable or equal work. That work is evaluated in five categories:

• Skill
• Effort
• Responsibility
• Working Conditions
• Establishment

Under the law, employers who violate the EPA can be held accountable in a court of law.

With its new law, Massachusetts joins California and Maryland in passing laws designed to put an end to wage discrimination once and for all. It is one of a dozen states that allow employees to compare salaries with one another as well. These new laws may help usher in real transparency in the workplace, a positive step in the right direction.

The Gilbert Firm provides comprehensive representation for employees throughout Tennessee whose rights have been violated. If you believe you are being compensated unfairly, we may be able to help. To schedule a consultation with a Tennessee wage discrimination attorney, please contact Michael Russell, Jonathan Bobbitt, Clint Scott or the Firm by filling out this form, or calling 888.996.9731. We maintain offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville for your convenience.

You might be hard-pressed to find someone without a smartphone these days. Aside from the fun we have with the apps (Pokémon GO, anyone?), or the relative ease of communicating with one another or on our social media accounts, we also gain immediate access to our emails. For people who work from home or keep fluctuating hours, this is an invaluable tool – but it could also be the root of a wage and hour claim, especially if you are not being paid for working on your own time.

As an employee, you have the right to be paid for your work. If part of your job is to check and respond to your emails, you should be compensated fairly for doing so, even if it is after regular business hours. If your employer accepts the work that you do while “off the clock,” you may be entitled to overtime pay.

Defining “hours worked” under the law

The Fair Labor Standards Act (FLSA) defines clear boundaries between hours worked that are compensable, and those that are not: “’Workday,’ in general, means the period between the time on any particular day when such employee commences his/her ‘principal activity’ and the time on that day at which he/she ceases such principal activity or activities. The workday may therefore be longer than the employee’s scheduled shift, hours, tour of duty, or production line time” (emphasis ours). Thus, if you require extra time to do your work, or you complete work that was not necessarily requested by your employer, but has been accepted by him or her, then that work is compensable under the law. Generally speaking, your hours worked may include:

• Time spent waiting to be given an assignment, provided you have been “engaged to wait” during that time.
• Short rest times (like a coffee break, for example) that are, generally, under 20 minutes are usually compensable, as opposed to designated meal times that may not be.
• Attendance at meetings or training sessions as mandated by your employer.
• Time spent traveling when such travel time is specifically designated by your employer (i.e., running an errand for the boss, or traveling to and from job sites).
• Time spent working through designated meal breaks, provided that work is part of your principal activity.

If answering emails is considered part of your principal duty, and you respond to those emails during non-business hours, you may be eligible for overtime pay because “employers are responsible for paying overtime when they know or should know that an employee is working after hours, even if the employee does not say so or file an overtime claim,” as the Chicago Tribune explains it. If that smartphone has been issued to you by your employer, you may have an even stronger claim.

There are exceptions to every rule, which is why seeking out the counsel of an experienced Tennessee FLSA violations attorney is the smart move when you believe you have been denied overtime. At the Gilbert Firm, we understand that no two wage and hour claims are the same, and we handle our clients’ cases with skill and diligence. To schedule your consultation with a Tennessee wage and hour attorney like Michael Russell or Clint Scott, or to make an appointment at one of our offices in Nashville, Chattanooga, Memphis, Jackson or Knoxville, please call 888.996.9731 or use our contact form.