Wage theft is illegal. If your employer has forced you to work off-the-clock or has failed to pay you overtime for working more than 40 hours in a week, you may have a claim under the federal Fair Labor Standards Act (FLSA) and state laws that require a minimum wage and overtime pay. And if you are eligible to join a class action lawsuit, you won't have to take on your employer alone.
Contact us for a free and confidential consultation if you have experienced any of these common wage and hour complaints:
Edelson Lechtzin LLP typically represents employees in unpaid wages and overtime cases on a contingent fee basis, meaning we don't get paid fees unless we obtain a recovery for you and the class.
Under the FLSA, employers must pay workers a minimum wage, pay overtime, maintain accurate payroll records, and adhere to strict youth employment standards. Workers who are covered by the protections of the FLSA, often referred to as "nonexempt" are entitled to overtime pay at a rate not less than one and one-half times the regular rate of pay after 40 hours of work in a workweek.
U.S. DEPARTMENT OF LABOR OVERTIME RULES
In May 2016, the Department of Labor promulgated new rules that require employers to pay overtime to employees who earn less than $47,476 a year. These rules apply to both salaried and hourly employees who work more than 40 hours per week. The rules also expand eligibility to professional and administrative workers who were previously not entitled to overtime pay.
MISCLASSIFICATION AS EXEMPT FROM WAGE AND HOUR LAWS
Misclassifying employees as exempt from state and federal wage and hour laws is one of the most common violations of employees' rights. Even employers concede that misclassification as exempt and failure to pay overtime is a recurrent issue.
Although the FLSA requires nonexempt employees to be paid a minimum wage and to be paid time and a half for hours worked more than 40 hours in a workweek, there are exemptions to these requirements. The most common exemptions generally require an employee meet a salary basis test (not less than $684 per week in 2020) and certain job duties tests (for administrative, executive and professional exemptions, among others).
In addition to the federal exemptions, employees may be covered by state law exemptions, which do not always mirror their federal counterparts. In New York, for example, the salary thresholds for administrative and executive exemptions are higher and vary by location, and the duties test exemptions also have slight differences.
INDEPENDENT CONTRACTOR MISCLASSIFICATION
One of the most common ways that employers cheat workers out of overtime pay is by misclassifying employees as independent contractors. Even where an individual agrees to be classified as an independent contractor, receives a 1099, or performs services through a separate limited liability company, they might not be properly classified as an independent contractor.
Under the FLSA, many courts look at the "economic realities" of a relationship to determine whether an employment relationship exists. However, several states, including California, New Jersey and Massachusetts, use an alternative and stricter test, called the ABC test.
Dynamex Operations West Inc. v. The Superior Court of Los Angeles County, S222732 (Cal. Apr. 30, 2018), the Supreme Court of California adopted the "ABC" test. Under this test, a worker is presumed to be an employee, rather than an independent contractor, unless the hiring company can establish that:
If the company cannot establish all three factors, then the worker will be considered an employee, and entitled to overtime compensation.
Gig Economy Workers Misclassified as Independent Contractors
The gig economy continues to grow and companies are increasingly depending on their ability to classify gig workers as independent contractors or freelancers to reduce their payroll expenses, employee benefits costs and tax liabilities.
Employers typically argue that their gig workers have more autonomy than employees regarding when, where and how much they work. Although properly classified gig workers may not be entitled to overtime under the FLSA and state wage and hour laws, all too often employers push the envelope beyond the limits of these laws. Consequently, both the U.S. Department of Labor and private law firms have successfully prosecuted lawsuits against employers who misclassify their gig workers as independent contractors.
If you are a gig worker and believe that your employer has misclassified you as an independent contractor or freelancer, contact us for a free consultation.
Another pervasive wage-theft practice is requiring employees to work off-the-clock. The U.S. Department of Labor has long recognized the pervasiveness of this abuse.
According to the Department of Labor, an employee's "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."1
The amount an employee should be paid under state and federal laws can't be determined without knowing the number of hours actually worked. That's why it is illegal for a company not to give credit to an employee for all the time they are engaged in activities that benefit the company - even if the work was voluntary.
Some common examples of illegal "off-the-clock" work include:
If your employer has required you to work off-the-clock, please contact us immediately for a free consultation to discuss your rights.
The FLSA's "8 and "80" Overtime Provisions
The Fair Labor Standards Act (FLSA) requires that employers pay most hourly workers for all hours worked plus overtime, calculated at one-and-a-half times the employee's regular rate, based on 40 hours per seven-day workweek. However, certain employers may be eligible to use the "8 and 80" system, in which a two-week, fourteen-day time period is used for the calculation. Contact us if you believe that your employer is abusing the 8 and 80 rules to cheat you out of overtime pay.
Q: How does the "8 and 80" overtime system work?
A: The "8 and 80" rule has three requirements. First, the employer and employee must have an agreement to use the "8 and 80" system before any work is performed. Your employer should provide you information about 8 and 80 practices during the application process, and its application to your job should be spelled out in a written agreement or your employee handbook. Second, the "8 and 80" system requires employers to pay overtime for every hour worked in excess of eight hours per day. So, if you work a 12-hour shift, you are owed four hours of overtime regardless of how many total hours are worked during the 14-day work-period. Third, the "8 and 80" system requires your employer to pay overtime for every hour worked in excess of 80 hours during the 14-day work period. But credit can be taken for any overtime paid in excess of eight hours per day. This can be tricky, and mistakes are common.
MEAL & REST BREAKS
Most states have laws requiring meal and rest break periods. Although the amount of time for breaks varies from state to state, in general these laws are strictly enforced. If you believe that your employer has been denying you sufficient time for meal and rest breaks you should immediately contact our team of wage & hour attorneys to find out whether you are entitled to compensation.