Category: Overtime/Wage & Hour

A new administration always brings changes, but the recent revival of the Holman Rule has raised a few eyebrows. As the Washington Post puts it, the Holman Rule is an “arcane procedural rule” which “empowers any member of Congress to propose amending an appropriations bill to single out a government employee or cut a specific program.” In layman’s terms, it allows Congress to cut the pay of individual federal workers, and to cut specific programs (or the specific employees who run those programs) from spending bills.

Congress has always held the power to eliminate programs or budgets; that is nothing new. What makes the Holman Rule different is that it applies specifically to workers, and overrides any other rules or statutes in place to protect those workers – including those in unions. J. David Cox Sr., national president of the American Federation of Government Employees, points out that “Reviving this rule means lawmakers will be able to vote to cut the pay and jobs of individual workers or groups of workers without getting input from the agencies where these employees work,” as reported by the Huffington Post.

Which laws protect federal workers?

While the Holman Rule (sometimes referred to as the “Armageddon Rule”) will take precedence over others, the Senate will still be required to vote for any amendments put forth under it, so they may not all pass. The rule will only be in effect for one year, unless Congress votes to renew it.

In the meantime, there are a number of laws that are in place at the federal level designed to protect employees. Some of them include:

• The Fair Labor Standards Act (FLSA)
• The Occupational Safety and Health (OSH) Act
• The Employee Retirement Income Security Act (ERISA)
• The Labor-Management Reporting and Disclosure Act (LMRDA)
• The Uniformed Services Employment and Reemployment Rights Act
• The Family and Medical Leave Act (FMLA)

You can find a full list of state and federal laws on the Department of Labor website.

At the Gilbert Firm, we represent victims of FLSA abuses at every level. Our skilled team of Tennessee wage and hour lawyers helps employees throughout the state seek justice when they their rights have been violated. To speak with us about a claim, or to find out about our services, please call 888.996.9731 or fill out our contact form. We maintain offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville for your convenience.

December first is almost here, and that means the new salary thresholds are about to go into effect. For a lot of Tennessee employers, this new threshold is worrying: how will they continue to make a profit if they must pay out more overtime? The truth is, there are several ways that employers can protect themselves without hurting their employees (or breaking the law), and one of those methods is by implementing a fluctuating workweek.

If you are an employee, however, you should be on your guard. While “Chinese overtime” can be legal, there are some strict rules in place for implementing it, and you may find that you have been denied fair pay for the work that you do.

Understanding the basics of FWW

Let’s say you have a job that pays you $10 per hour, for 40 hours of work per week. Some weeks, you work 50 hours, and some weeks you only work 20 hours a week; it depends on how busy your job is. Your employer can institute a fluctuating workweek; this will give you a fixed weekly salary, even if you didn’t complete forty hours of work that week. However, if you do extra work, and you go over your 40 hours, the amount of overtime you can collect changes. Instead of the regular time-and-a-half or 150%) that you normally receive for those overtime hours, your boss only must pay you 50% of your hourly pay in overtime wages.

Without a FWW, you might make $400 for 40 hours, $200 for 20 hours, and $550 for 50 hours. With a FFW, you will always make at least $400 a week, but your overtime wages would be a third of what you normally receive, so you’d make $450 for 50 hours’ worth of work.

Identifying potential problems

The fluctuating workweek is great when your job is slow and you work fewer than 40 hours, but it can cost you hundreds or thousands of dollars each year in overtime pay. The following are examples of how employers can misapply the FWW:

• Having a bonus system (like a holiday bonus or shift differential), which means you are not being paid a “fixed salary.”
• Having a limited number of sick days, with your being docked once you exhaust your sick days.
• Instituting unpaid leave polices.

Another serious consideration relates to the federal minimum wage. An employee who works too many overtime hours could see his or her salary dip below that minimum. Workers should also be wary if, suddenly, their employers try to get them to work far more overtime than they usually do. If the most you’ve ever had in overtime was 10 hours in the weeks at the holidays, and now suddenly your boss is scheduling you for 55 hours a week all year ‘round, he or she could be in violation of the Fair Labor Standards Act.

A lot of things are about to change for Tennessee employers in the next month; we don’t want employees to suffer because of it. At the Gilbert Firm, we handle complex wage and hour violations for workers all over the state. To speak with an experienced Tennessee FLSA violations attorney like Michael Russell or Clint Scott, please call 888.996.9731, or fill out this contact form. The Firm maintains offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville.

 

 

 

When you think “global brand,” you think McDonald’s. Their fast food restaurants can be found in 119 countries, and employ more people than any other private employer in the world except Walmart. They are also the face, for better or worse, of a labor movement in this country that asks for real, living wages for their employees. Because approximately 90% of McDonald’s stores are franchises, bringing a claim against the corporate office for wage and hour violations has proved near impossible for decades.

On October 28, 2016, McDonald’s did something it has never done before: it settled a class-action lawsuit for overtime pay (among other issues) to the tune of $3.75 million. CNBC reports “In a filing in U.S. district court in San Francisco on Friday, lawyers representing about 800 employees at five restaurants owned by a single franchisee said Illinois-based McDonald’s would pay the workers $1.75 million in back pay and damages and $2 million in legal fees.” The site Buzzfeed published the full settlement, in case you are interested.

This is an extraordinary move by McDonald’s, a company not known for its willingness to part with money (Stella Liebeck, anyone?). The reason is this: McDonald’s is a franchise corporation, which means that the company can claim (and often does, to much success) no real liability when it comes to how their franchisees behave. In other words, McDonald’s says it should not be held responsible for wage and hour violations by its franchisees because it is not a “joint owner” of the stores in question.

However, agreeing to settle this particular lawsuit would seemingly open McDonald’s up to any new and pending suits that wish for the corporation to share in the responsibility. On their end, McDonald’s spokeswoman Terri Hickey reiterated that this decision to settle does not make them joint owners, and that “We [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][McDonald’s] entered into this mutually acceptable resolution to avoid the costs and disruption associated with continued litigation.”

What happens now?

According to the court filing, the franchise owners (the Smith family, who had previously settled with this same group for $700,000 last December) must be retrained by McDonald’s “on the use of corporate software designed to ensure compliance with California’s uniquely strict employment laws.”

But there is another issue brewing – one that could use this settlement as a precedent to make a case for joint ownership – with the National Labor Relations Board. Bloomberg reports that “The NLRB determined last year that McDonald’s shares responsibility with franchise owners for managing such employees, a finding that promises to have far-reaching impact on the company and its peers if it survives a January trial. The case, overseen by a labor board judge, involves workers who were allegedly fired or suspended at 29 locations in five states for their involvement in protests and a bid to unionize. Both sides agree the outcome will affect more than a few dozen stores” (emphasis ours).

We will be following this case very closely, and we hope you will check back with us to learn more about it as new details come to light.

If you have been denied overtime pay or unfairly terminated from your job, the Gilbert Firm may be able to help. Our Tennessee wage and hour attorneys represent employees throughout the state. To schedule a consultation with Michael Russell or Clint Scott, please call 888.996.9731, or fill out our contact form. With offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville, we are always nearby when you need us the most.[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

“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.

The Department of Labor has so-called “rule making” authority regarding the white-collar exemptions to the FLSA overtime regulations. These include the professional, administrative, and executive exemptions. President Obama charged the DOL with issuing amendments to update these regulations. Most of the attention has centered on the expected revisions to the “salary basis” test.

Prior to the revisions, employees must earn a weekly salary of at least $455.00 per week to qualify for these exemptions. The Obama administration has argued that this threshold amount, which has remained unchanged for an extended period of time, is simply too low. The DOL issued a proposal, pursuant to the Administrative Procedures Act, which would raise this amount to slightly over $50,000 and index it for future increases.

The proposal elicited more than 270,000 comments. By way of comparison, the 2004 revisions elicited only 70,000 comments. In May, the Department of Labor finally published the revisions. Here, we will address some of the most frequently asked questions arising out of the new rules.

What is the new “salary basis?”

During the notice and comment period, the DOL was apparently poised to raise the salary basis from $23,660 per year to slightly more than $50,000.00. This would have represented 40% of the average salaried wage for exempt employees.[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][1] In April, however, word leaked that the new salary basis would be slightly lower. The new salary basis was ultimately set at $913.00 per week ($46,476 per year).

How did the DOL arrive at this salary basis?

It was the product of a compromise. The DOL ultimately set the salary basis at the 40^th percentile of earning of full-time salaried workers in the lowest-wage “census region,” which is the South.

How will it be indexed?

The DOL recognized that the political climate makes it difficult to raise the salary basis as often as appropriate. Therefore, under the final rule, the threshold salary will automatically update every three years. Each update will adjust the minimum salary to the 40^th percentile of earning of full-time salaried workers in the lowest-wage “census region.”

What about the Highly Compensated Employee Exemption?

Prior to the revisions, employees earning $100,000 and performing minimal exempt duties were exempt from overtime. The revisions raise this number to $134,004 per year. Like the salary basis test, this number will automatically adjust every three years. It is set at the 90^th percentile of full time salaried workers nationally.

When will the next round of salary adjustments be made public?

The Department of Labor will post new salary levels 150 days in advance of their effective date, beginning August 1, 2019.

Will Non-Discretionary Bonuses Be Included in the Salary Threshold?

During the notice and comment period, the DOL asked for comments on this issue. Under the final rule, non-discretionary bonuses are allowed to be counted toward the salary threshold, with a limit of 10%. In other words, the final regulations may say that no more than 10% of the salary necessary to satisfy the salary basis test can be in the form of a non-discretionary bonus.

Will There Be Changes to the Duties Test?

This was the big question. It was clearly the elephant in the room whenever this topic is discussed. During notice and comment, the DOL asked for comments on whether some minimum percentage of time must be spent performing non-exempt duties in order for an employee to satisfy the exemption. This would make the FLSA somewhat analogous to California state law. In the end, however, the DOL did not change the duties test.

If you believe your employer has violated the FSLA’s overtime provisions, or if you have concerns regarding exemptions, we can help. The Gilbert Firm represents employees throughout Tennessee who have been wrongfully exempted from their overtime pay. To schedule a consultation with a skilled Tennessee FSLA attorney, please contact Michael Russell or Clint Scott, or contact one of our offices in Nashville, Chattanooga, Memphis, Jackson or Knoxville by filling out our contact form, or by calling 888.996.9731.

[1]                 In 2004, it was set at 20% of the average salary for exempt workers in the South.[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

A quick online search of the classifieds shows hundreds of openings for telecommuting positions. The beauty of such a position, of course, is that you are not limited to Tennessee; you can apply for any of the thousands of jobs in countries across the globe, and work from the comfort of your own home.

One of the primary drawbacks, however, is that it can be difficult to keep track of just how many hours a telecommuter works. For example, let us say that your normal lunch hour in an office runs between 1:00pm and 2:00pm. When you work from home, you may continue a project through that hour while consuming your lunch. Because you worked during that time, however, your employer is required to pay you for that time. Failure to do so is a direct violation of the Fair Labor Standards Act.

Common problems for telecommuters

Telecommuters face a number of challenges that traditional office workers may not, when it comes to fair pay. Some of those challenges include:

• Poor ability to accurately track hours worked
• Pay discrepancies if a telecommuter’s internet or phone lines go down
• Determining compensable travel time for required in-office visits after the work day has begun
• Determining overtime in cases where the work day is done, but the employee continues to answer emails long after business hours are through

If the payroll policy is unclear, or there are disputes regarding contractual language, telecommuters may find themselves receiving less pay than expected. In some cases, it may be an unfortunate misunderstanding on behalf of the client; in others, however, the employee may have a claim under the FLSA, as “The rule is also applicable to work performed away from the premises or the job site, or even at home. If the employer knows or has reason to believe that the work is being performed, he must count the time as hours worked.”

If Fortune Magazine is correct, about 33% of “major employers” in the U.S. allows for some amount of telecommuting. Without proper tools and protocols in place, these employers may end up bilking their employees out of thousands, perhaps millions, of dollars in pay each year. At the Gilbert Firm, we protect the rights of workers whose employers have denied them fair compensation, or violate other tenets of the FLSA. To work with an experienced Tennessee wage and hour attorney, please contact Michael Russell, Clint Scott, or one of our offices in Nashville, Chattanooga, Memphis or Jackson, to reserve a consultation time.