Articles Posted in Wage & Hour

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home health careA late June decision by the U.S. Supreme Court not to take a case pursued by several trade association groups means that a revised regulation expanding minimum wage and overtime protections to almost two million additional home care workers will stand. The high court’s refusal to hear the case leaves intact a D.C. Circuit Court of Appeals ruling from last year that determined that the U.S. Department of Labor validly exercised its authority to create wage-and-hour regulations when it decided to redefine who is, and who is not, an exempt “companion services” worker.

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business-clock-300x194The Department of Labor is considering raising the minimum wage an employee must earn to be considered an overtime exempt employee. If the proposed rules raise the wage threshold as expected, millions of workers who thus far have been exempt from overtime pay could be eligible.

The federal law that controls overtime rules in Georgia and the rest of the United States is called the Fair Labor Standards Act (FLSA). The FLSA requires employers to pay employees an overtime wage of 1.5 times the employee’s normal salary for each hour in excess of 40 the employee works in a seven-day workweek.

However, the FLSA exempts many types of employees from the overtime mandate. This means that employers are not legally required to pay these overtime-exempt employees the time-and-a-half overtime wage. Whether an employee is exempt or nonexempt is determined by the primary duties of her job. The employer does not determine whether the employee is exempt or nonexempt.

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Money dominoesThe Georgia legislature began its 2015-2016 regular session on January 12, and a controversial minimum wage bill could be up for debate in the house. House Bill 8, sponsored by Reps. Tyrone Brooks and Dewey McClain, seeks to increase the Georgia minimum wage to $15 an hour for most nonexempt employees.

The current Georgia minimum wage is $5.15 an hour, which is lower than the federal minimum wage of $7.25. Employers covered by the Fair Labor Standards Act (FLSA), a federal law, must pay the $7.25 wage. Most employers not subject to the FLSA — usually smaller entities with fewer employees — must pay the $5.15 Georgia wage. The smallest of employers may be exempt from all minimum wage laws.

The proposed legislation, if it is passed into law, also would broaden the number of employees exempted from Georgia’s minimum wage. Currently, domestic workers, farm workers, and employees who depend on tips are exempt from the law, meaning that they do not have to be paid the minimum wage. The proposed legislation would change that: Employers of domestic and farm workers would be obligated to pay the new minimum wage. For waiters and other employees who are paid gratuities the new legislation would allow tips to constitute up to 50 percent of their new $15 minimum wage.

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Perhaps drawing inspiration from the college bowl games and NFL playoffs, the world of employment law lately seems fixated on the intrigue of overtime, although more in the context of bonus pay than bonus play. While it may not be as thrilling as a Hail Mary pass or as heartbreaking as a missed kick (sorry, Auburn fans) to end the game, overtime as it relates to the Fair Labor Standards Act (FLSA) can have a major impact on both employers and employees, so it’s worth taking some time out from being an armchair quarterback to look at some of the latest developments.

Two big court decisions in December went against employees looking for overtime. The first came from the US Supreme Court in Integrity Staffing Solutions v. Busk. As covered previously on this blog, the case asked whether time—up to 25 extra minutes—spent in an internal security screening line at the end of one’s shift should be compensable. In a rare move for such divergent ideologies, the justices were unanimous in rejecting the notion that time spent in the line deserves to be time on the clock. Continue reading →

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With the economic downturn largely in America’s rearview mirror as job creation and employment continue to rise, there’s been a lot of talk about the quality of many of those new roles. Whether it’s fast food workers or retail employees, the most prominent new labor issue is not whether there are jobs to be found, but whether those jobs offer a living wage. Over the past several months, workers in minimum- and low-wage positions have made increasingly louder demands for higher pay and unionization rights through a string of walkouts and protests around the country. Perhaps a matter of serendipitous timing or the signal of a cultural shift, it seems that lawmakers and courts are giving life and validity to the movement, and employers should start taking notice.

Consider the situation at America’s biggest retailer, Walmart. For the third year in a row, Black Friday shoppers across the country were met by protests from workers and sympathizers demanding a base pay increase to $15 per hour and the right to form a union. Actually, the number of Walmart workers comprised only a small portion of the protesters, with the majority being members of other unions offering support. Whether the protesters actually represent the sentiment of all or even most Walmart workers largely depends on which side of the divide is offering an opinion, but an administrative law judge for the National Labor Relations Board (NLRB) recently sided with employees who said they were unfairly disciplined by the company for their efforts to organize workers.

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Much as single days celebrating mothers and fathers seem to fall short of fully acknowledging everything they do for their families, a lone Monday off in honor of America’s hard workers is far from all the reward they deserve. Of course, that shortfall is unfortunately what keeps employment law attorneys busy the other 364 days of the year. Instead of focusing on all that needs fixing to help ensure workers’ rights, however, today is a good day to reflect on some of the biggest labor wins of the past century.

By any objective standard, the Fair Labor Standards Act (FLSA) of 1938 should be near the top of victories for the working class. After decades of failed efforts to right wrongs that included excessive child labor, six-day work weeks of 10 or more hours a day, and unlivable wages, President Franklin D. Roosevelt and Congress engaged in years of back-and-forth negotiations to finally arrive at a bill that banned oppressive child labor, capped the work week at 44 hours, and set a minimum wage of 25 cents an hour–about $3.32 in 2014 dollars. (A detailed and compelling history of the FLSA can be found on the U.S. Department of Labor’s website.) While the FLSA couldn’t begin to solve all the ills faced by the labor force, and it didn’t achieve the 40-hour week or 40-cents-an-hour minimum wage that many had pushed, it cemented a huge win for workers’ rights.

Almost 80 years later, conditions for workers have generally improved. Still, access to fair, livable wages continues to dominate much of the conversation about what the labor force needs, with President Obama and labor unions using today to further their efforts to increase the federal minimum hourly wage from $7.25 to $10.10. So far, opponents have stalled any national movement on the issue, but several states and municipalities have already enacted higher minimum wages, with Seattle going so far as to raise it to $15 per hour.

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receptionist-76376-mA federal judge in Georgia recently denied a plaintiff’s motion for conditional certification of a class-action lawsuit over wage and hour violations.

In Wallace v. Norcross Associates, LLC, the plaintiffs sought unpaid overtime wages under the federal Fair Labor Standards Act (FLSA).  Alvina Wallace and the other litigants were sales associates or sales representatives employed by Norcross Associates, a telemarketing business that sold long-term telephone service contracts for providers like Verizon.  During their employment, Wallace and the others worked on various sales campaigns geared toward business and residential customers.  In return, they received payment along several different compensation schemes, including hourly pay, hourly pay and commissions, commissions only, commissions with $10 per hour recoverable draw, and an increasing hourly rate based on the total number of products and services sold.

Under these schemes, Wallace was employed from April 2007 until March 2012, during which time she was compensated at an hourly rate, an hourly rate plus commissions, and commissions only with a $10 per hour recoverable draw.  Other litigants were paid on a commissions-only basis with a $10 per hour recoverable draw or an hourly basis plus commissions.  All involved claimed that they regularly worked more than 40 hours per week but were never paid overtime.  They also argued that their employer never paid them all of the commissions that they earned.  Their employer, for its part, claimed that it had paid the litigants for all of their time.  Nonetheless, Wallace and the other litigants sought FLSA section 216(b) class status.

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phone-series-3-755129-mA federal court in Tennessee recently certified a group of call center employees as a class under the Fair Labor Standards Act (FLSA), clearing the first hurdle in their class-action lawsuit.  While most federal class-action lawsuits must meet the requirements of Federal Rule of Civil Procedure 23, class-action lawsuits under the FLSA must instead meet the standards of FLSA section 216(b). 

In Rice v. Cellco Partnership, the employees seeking to form a class worked in the Cellco Murfreesboro, Tennessee call center, where they claimed that they were routinely required to perform work “off of the clock” that was actually compensable.  In particular, the employees needed to arrive at their desks at least 15 minutes (and most often 20 to 30 minutes) before their shift began for the purpose of preparing to log onto the Rockwell phone system and take their first calls.  The employees were allegedly disciplined if they were not prepared to take their first call at the start time, and were not allowed to include any time not reflected in the Rockwell phone system.  The employees were allegedly required to check for work-related emails before and after work and during their lunch breaks, for which they were not compensated.  If they logged the actual time they spent working, the employees were disciplined.  Finally, the employees claimed that although they were paid for part of their overtime hours, they were not paid for all of them.

The employees requested that the federal court conditionally certify the action as a collective action under the FLSA and authorize them to send notice to all current and former employees who had worked as customer service representatives for Cellco during the past three years.  Meanwhile, Cellco argued that the employees failed to meet their burden for conditional certification, in that they could not establish that they were similarly situated to the proposed class, or that Cellco had a common policy to violate its lawful policies.  Continue reading →

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Many people who work in the state of Georgia are unaware of the state’s laws with respect to wages. Given the current economic times, many individuals are just happy to have a job, regardless of whether or not they are receiving fair pay for the work performed. Still, any Atlanta employment attorney will tell you that it is important for people who work to know that there are certain hour and wage laws that the state must follow.

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The falsification of timesheets in the workplace is a very serious offense under the law. When some people hear about falsifying timesheets, they immediately assume that it was the employee who was doing the falsifying. However, a Georgia employment attorney can tell you that it is not only an offense that is committed by employees–employers are often guilty of the violation as well.

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