COMMON VIOLATIONS

Wage and hour violations frequently arise out of common allegations, including:

• Misclassification of exempt employees: Certain workers are exempt from FLSA overtime and minimum wage provisions. Misclassified workers may be owed overtime and minimum wage, but denied them.
• Independent contractor misclassification: Employers may misclassify employees as independent contractors, thereby avoiding wage and hour law requirements. The issue is currently a DOL national enforcement priority.
• Off-the-clock work: Disputes often arise over employer’s alleged failure to pay for pre-shift and post-shift activities.
• Unpaid on-duty meal and rest breaks: According to the FLSA, breaks lasting under 20 minutes are compensable, while meal periods lasting one-half hour or more are generally non-compensable.
• Improper calculation of the regular rate: Employers frequently miscalculate overtime, which should be based on a worker’s “regular rate of pay,” but this rate changes frequently because of additional earned compensation (such as bonuses) which must be included in the pay rate calculation.
• Improper deductions from salaried employees: Only certain types of deductions can legally be taken out of employee salaries for missed work time.
• Illegal tipping practices: Employers may not keep tips earned by tipped employees—unless it is as a “tip credit” towards the applicable minimum wage. And gratuities shared among tipped workers in a “tip pool” aren’t required to be shared with non-tipped workers.
• Failure to pay minimum: Under the FLSA, covered, nonexempt workers must be paid at least $7.25 per hour. Some state and municipalities provide a higher minimum wage.
• Failure to pay overtime: Covered, nonexempt workers under the FLSA must be paid at least 1.5 times their regular rate of pay after 40 hours of work in a workweek.Some states have more generous overtime pay laws.
• Inadequate recordkeeping: The FLSA mandates that employers keep employee time and pay records.

Both federal and state laws govern wage and hour issues. Depending on the alleged violation, an attorney can help you to determine the best legal course of action. Lawsuits can contain claims under both the FLSA and state laws.

YOU AREN’T ALONE: TAKING PART IN EMPLOYMENT COLLECTIVE AND CLASS ACTIONS

While it’s possible to pursue a wage and hour lawsuit individually, doing so may be impractical because individual claims are usually quite small, making it hard to find a lawyer and/or to justify litigation costs. But by banding together, similarly situated workers increase the total case value and share costs.

Collective and class actions also make sense because when one employee is being wronged, there’s a good chance that others are, too, especially in large organizations. Whether employers intentionally skirt the law in order to cut costs or their noncompliance is simply a mistake, wage and hour law violations rarely occur in isolation.

For example, if one grocery store cashier has a complaint about being made to arrive at work 15 minutes before their shirt starts to prepare their work station (i.e. being made to work off the clock), chances are good that other cashiers at the same store are subjected to the same practice. And if the supermarket has multiple locations, cashiers at all of those stores might not be paid for off the clock work as well.

Or, if your company misclassifies you as an exempt employee (who therefore isn’t entitled to wage and hour law protections), you probably aren’t the only one being misclassified and denied rights.

Employees who believe they are being mistreated under the law should consult with an employment lawyer to learn their options. Before getting in touch with an attorney, you might want to speak with coworkers to get a sense of whether others are victims of the (alleged) illegal practice.

There’s also a chance that a group of employees is already involved in a collective or class action that you are eligible to join. You might even have been contacted by an attorney about “opting-in” to a collective action, or received notice that you’re a member of an employment class action. In these scenarios, it still makes sense to contact an attorney and receive an objective second opinion.

It could be the case that you’re the first person to draw attention to a wage and hour violation. If so, you (and possibly one, two, or a few others) might end up initiating legal action and being a “named plaintiff” on the lawsuit complaint. In this scenario an employment lawyer will handle every aspect of the case, although as a named plaintiff, you might have additional responsibilities. Your lawyer will help you to understand what these responsibilities are and make sure you willing and able to handle them.

A final point that bears mentioning: employees may not bring an FLSA lawsuit if the Department of Labor has already intervened in the matter. The FLSA gives the DOL authority to recover wages on behalf of employees whose wage and hour rights were violated. Each year the DOL recovers hundreds of millions of dollars on behalf of workers.

STATUTE OF LIMITATIONS

Employees generally have 2 years from the time an alleged violation of the FLSA occurred to file a lawsuit. The filing deadline is extended to 3 years in the case of willful violations.