One month ago today, a new U.S. Department of Labor rule updating the standard for classifying workers as employees or independent contractors under the Fair Labor Standards Act became effective. The new rule has received extensive coverage, with some commentators praising it as a needed expansion of workers’ rights, while others disparaged it as unfairly restricting opportunities for freelancers. Regardless of one’s perspective, the rule is now effective and employers and workers alike should familiarize themselves with its elements and its impact on their jobs or businesses. Whether you’re a worker or an employer, classification errors under the FLSA can potentially be highly damaging, which is why it’s vital to consult a knowledgeable Atlanta wage and hour lawyer about your situation.

As this blog discussed in October 2022, the new rule utilizes the “economic realities” test to determine if a worker is an employee or an independent contractor. The rule calls upon decision-makers to make assessments using six economic realities. The 11th Circuit Court of Appeals (which covers Georgia, Alabama, and Florida,) described those six in 2013 as:

  1. the degree to which the hiring entity has a right to control how the work is performed;

When people hear the word “discrimination,” they may often associate it with historically marginalized groups, like people of color, women, LGBT+ people, and so forth. The law, however, is broader than that. Federal anti-discrimination statutes protect people who encounter discrimination based on protected characteristics, regardless of whether or not they were members of a historical minority/disadvantaged group. Even if you’re male, White, American, or “straight,” you still have the possibility of pursuing – and winning – a federal discrimination lawsuit. So, if you’ve endured this sort of harm, don’t hesitate to contact an experienced Atlanta employment discrimination lawyer to discuss your legal options.

A federal race discrimination case that originated in neighboring Alabama exemplifies this point. T.P., a White woman, worked for a cabinet manufacturer inspecting and repairing cabinets. As workloads increased, so did employee hours. Several employees complained about the long hours, including T.P. and two of her Black colleagues. Allegedly, the operations manager, who also was Black, fired T.P. for complaining but issued no discipline to the two Black workers who complained. According to the employer, T.P. was fired for “insubordination.”

That treatment served as the basis for T.P.’s federal race discrimination lawsuit under Title VII and 42 U.S.C. Section 1981. In addition to the complaining incident, T.P. had other alleged evidence of racially disparate treatment. She provided the court with a set of the employer’s disciplinary records, which included 12 circumstances where employees of color were cited for insubordination but were not fired. At least three of those 12 were subordinates of the same operations manager who fired T.P.

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Sometimes, a degree of employer flexibility may be an important ingredient in that employer avoiding employment litigation and potential civil liability. However, as a recent disability discrimination case originating in Savannah highlights, the mere fact that an employer behaved in a way that seems excessively strict, harsh, or severe, doesn’t necessarily mean the employer broke the law. Even if the employer fired a worker based on motivations that were not “prudent or fair” — or had no reason at all for the termination — that firing is permissible as long as it “was not rooted in discrimination” or some other basis forbidden by law. Whether you’re an employer defending against a disability discrimination lawsuit or a worker harmed by illegal discrimination, an experienced Atlanta disability discrimination lawyer can be crucial in protecting your rights and interests.

The worker in the Savannah case was a crane operator for the State of Georgia’s ports authority. He also was an Army veteran who suffered from post-traumatic stress disorder (PTSD) as a result of his time in combat.

In the summer of 2018, the operator requested 12 weeks of Family and Medical Leave Act (FMLA) leave to undergo “intensive therapy” for PTSD. As the 12 weeks neared their end, the operator’s doctor recommended 12 more weeks of leave, and the employer approved the extension. Near the end of the second 12-week period, the operator requested a transfer to a different work area. HR informed the operator that he needed to submit a signed letter that (1) stated he could safely return to work and (2) listed the disability accommodation (transfer) he sought.

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Whether you are an employer or a worker, employee-versus-nonemployee classification for purposes of employment law is a vital step, and the extreme importance of this classification process is something where you definitely should consult a knowledgeable Atlanta wage and hour lawyer. As a worker, misclassification may improperly deny you access to many statutory rights, including those guaranteed by the Fair Labor Status Act. As an employer, misclassification can inflict its own potential harm, including legal liability and an obligation to pay substantial court-ordered compensation to the worker(s) who sued your business.

Often, misclassification disputes involve deciding whether a worker is an employee or an independent (1099) contractor. As an FLSA case that recently came before the 11th Circuit Court of Appeals illustrates, that’s not the only way that misclassification can occur, and any classification that improperly fails to designate a worker as an employee can have serious negative consequences.

The plaintiffs performed services at a public golf club in South Florida. These roles included course rangers, cart attendants, driving range attendants, and bag drop attendants. The county specifically listed the positions as “volunteer” roles. They received no wages but were allowed to accept tips. As a perk, volunteers performing these tasks were entitled to “reduced fees to play and practice golf.” Specifically, volunteers who worked at least one seven-hour shift each week were entitled to “unlimited” rounds of golf at a steep discount ($5 per round instead of the standard $96 per round.)

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Whether you’re an employee who’s endured discrimination or an employer facing a discrimination claim, it is important to understand how the employment discrimination litigation process works. An employee’s success is predicated upon clearing a series of evidentiary hurdles. For employers, success may lie in persuading the court that any one of those components was lacking. Whichever side you’re on, an experienced Atlanta employment discrimination lawyer can help you pursue your case in the most effective way possible.

As we noted last month, workers who allege employment discrimination may prove their cases either by presenting a “convincing mosaic” of circumstantial evidence or by satisfying the elements of the test created by the U.S. Supreme Court in the 1973 case of McDonnell Douglas v. Green. A recent federal race discrimination case from here in Atlanta shows the McDonnell Douglas procedure at work, and how a single evidentiary flaw can doom a worker’s case.

The employee was a sales representative for an analytic and diagnostic lab. After two years, the lab fired the representative. It said she had underperformed. She said it was race and gender discrimination.

A recent minimum wage case from Massachusetts is a reminder that just because an employee is not actively engaged in conducting the employer’s business — or maybe even is asleep — that doesn’t mean those hours aren’t compensable time. Hours spent on-call or waiting to work may or may not be compensable time under the Fair Labor Standards Act. The analysis depends on the totality of the circumstances and, as the courts have put it, were the employees “engaged to wait” or waiting to be engaged? Whether or not you’re an employer or an employee, understanding what time is compensable (and what isn’t) is crucial. An experienced Atlanta wage and hour lawyer can help you make those assessments and take the appropriate next steps.

The case from the Massachusetts federal court involved long-haul truck drivers. Federal regulations demand that truck drivers spend 10 hours of every 24 off duty, but other regulations say that employers when determining compensation, can deduct a maximum of eight hours of every 24 as a sleeping period. The drivers’ minimum wage lawsuit contended that they should be entitled to compensation for 16 hours, not 14.

The court sided with the employees. Given that the drivers spent the hours in dispute in a moving semi-truck (a confined space “that is ill-equipped for many activities,” “containing only some basic living essentials,” and that drivers cannot leave until the truck stops moving,) the court concluded that the time was not truly the drivers’ own but instead spent predominantly for the benefit of the employer, making it compensable.

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Last year, a few major U.S. Supreme Court rulings turned 50 years old. The first case to come to many minds probably is the landmark 1973 ruling of Roe v. Wade. However, the name at the tips of employment lawyers’ tongues probably is the discrimination case of McDonnell Douglas Corp. v. Green. Recently, the 11th Circuit Court of Appeals (whose reach encompasses federal matters in Georgia, Florida, and Alabama,) issued a significant decision clarifying exactly how the McDonnell Douglas case’s precedent does — and does not — impact discrimination litigation today. If you have questions about employment discrimination, you need to consult a knowledgeable Atlanta employment discrimination lawyer who can provide you with information that is fully up to date.

The recent discrimination case, decided in December, involved L.T., an African-American woman and the superintendent of a juvenile detention center, and her employer, the Florida Department of Juvenile Justice. After one particularly problematic day at the center, the assistant secretary of detention services assembled a team to review staffing and personnel issues at L.T.’s facility. After the team completed that review, the assistant secretary fired L.T., despite the superintendent’s 16-year record devoid of negative performance reviews or discipline.

The superintendent sued for race and sex discrimination. A key part of her case was comparator evidence; namely, that two similarly situated white Juvenile Justice employees had faced similar problems but were treated very differently. The department immediately fired L.T.; the two white superintendents who similarly faced allegations of a lack of control and a failure to follow departmental policies “received only oral reprimands, were allowed to transfer to different facilities, and were granted multiple opportunities to comply with various recommendations for improvement.”

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Domestic workers (like nannies and housekeepers) are a diverse group. Even fictional depictions range from Julie Andrews’ Mary Poppins to Robin Williams’ Mrs. Doubtfire. In real life, these workers often put in long hours, working more than 40 hours a week. Those facts may mean that a nanny or housekeeper may be entitled to substantial overtime compensation if they qualify as a non-exempt employee. If you have questions about the Fair Labor Standards Act’s overtime requirement or the domestic service exemption, consult an experienced Atlanta wage and hour lawyer.

A South Florida nanny’s recent unpaid overtime case clarified the breadth/narrowness of the domestic service exemption in federal cases in Georgia and two surrounding states.

The worker began as a full-time nanny and housekeeper for two South Florida parents in 2019. The nanny worked overnight shifts for five consecutive nights, totaling 79 hours per week. The parents paid the nanny a flat rate of between $800 and $880 weekly.

One of the more common issues employers and employees may encounter regarding a possible discrimination lawsuit is the existence of a valid arbitration agreement. Many employers include these agreements with other contractual documents that new hires sign as part of their “onboarding” process. Whether you’re a worker looking to litigate a discrimination claim or an employer seeking to compel arbitration (or ensure that your arbitration agreement is valid under the law,) it pays to get advice and representation from an experienced Atlanta employment discrimination lawyer.

The key for employers seeking to utilize arbitration to resolve workplace discrimination disputes is ensuring that everything about these agreements meets the law’s tests for validity. If the agreement is valid and enforceable, then the employer can get an order compelling arbitration rather than litigating in court. If the agreement isn’t valid under the law or no agreement exists at all, then the worker has the right to proceed in court.

A flaw — either in the wording or the execution process — can potentially sabotage the employer’s preference for arbitration, as one employer found out recently.

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Food delivery drivers frequently can be the victims of Fair Labor Standards Act violations. That can include improperly underpaying drivers who use their personal vehicles for deliveries (by paying them only the minimum wage and then not properly paying them for the vehicle expenses they incur,) or illegally underpaying them as a result of misclassification as exempt employees when they really were non-exempt. Whether you’re a driver who believes your employer denied you the pay that you were owed under the law, or you’re an employer seeking to ensure that your pay practices are compliant with relevant laws, if you have questions about the FLSA, you should seek out knowledgeable answers from an experienced Atlanta age and hour lawyer.

One of those underpaid workers was A.N., a North Georgia pizza delivery driver, who filed to arbitrate a claim that the employer had illegally underpaid him in violation of the FLSA in 2019. The next year, an arbitrator sided with the driver and concluded that he had suffered $5,198 in actual damages. Coupled with $5,198 in liquidated damages and $153,867 in attorneys’ fees and costs, the total award was $164,264. The federal court for the Northern District of Georgia affirmed the award.

The employer, however, refused to pay. That forced the driver to bring a collection suit in federal court in Missouri, which the employer contested. The driver ultimately succeeded in collecting the judgment but spent an additional $53,934 to do so. The driver, in pursuit of the collection of those expenses, returned to the Northern District court on a motion for fees and costs.

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