Articles Posted in Wage & Hour

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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A 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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A 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 ›

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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The National Economic Research Associates (“NERA”) recently released a report indicating that wage and hour lawsuits and settlements have increased in 2012 across the United States. According to NERA’s report on, employers paid, on average, 18% more to settle wage and hour disputes in 2012 than they did in 2011.

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