According to the Department of Labor’s Wage and Hour Division, compensable hours include all the time that an employee is required to be on the employer’s premises, on duty, or at a prescribed workplace. According to the lawsuit, the car wash company’s owners would clock out employees when the amount of business dropped, then clock employees back in when business picked up. The employees, however, were required to stay at work while they were off the clock.

The Wage and Hour Division says that problems adhering to Fair Labor Standards typically arise when employers “fail to recognize and count certain hours worked as compensable hours.”

In a report by the Tennessean, Megan Macareg, director of Middle Tennessee branch of Jobs with Justice, a national organization that defends workers against unfair employment practices, said the car wash employees “didn’t have anywhere to sit or eat.”

“To a large extent, the company has cleaned up its act, but the stealing of wages is a massive problem,” Macareg said.

Wage theft activist and author Kim Bobo traveled to Nashville to attend a rally celebrating the settlement. Bobo is the executive director of Interfaith Worker Justice, a Chicago-based organization that appeals to the shared convictions of all religions in protecting the rights of waged workers.

Bobo, who believes that wage theft has become an epidemic in the U.S., blames corporate greed, the tough economy, and lack of government involvement. “Over the last decade, we have seen an abdication of the role of the government enforcing labor laws,” she said.

SOURCE: Fair Labor Standards Act › Nashville workers settle FLSA complaint against employer

The fine was the first one issued by the Wage and Hour Division under the Genetic Information Nondiscrimination Act of 2008 – a statute that raised the penalty to $50,000 for each violation of child labor laws resulting in death or injury. Subsequent violations of the same laws result in maximum fines of $100,000.

The demolition company must also pay more than $3,000 for failing to keep accurate records, which investigators believe may have contributed to the accident. Additionally, the Occupational Safety and Health Administration cited the company nearly $24,000 in penalties for seven safety violations at the work site where Luis Montoya, 15, was killed.

Secretary of Labor Hilda Solis, herself a longtime crusader for workers’ rights said “the federal rules governing the employment of minors are clear, and the consequences for failing to comply are serious.”

“Young workers must be employed safely and legally,” she said.

The Wage and Hour Division lists on its web site industries that it deems too unsafe for workers younger than 18. “Occupations involved in wrecking, demolition, and shipbreaking operations” are among those trades listed as unfit for minors.

The Wage and Hour Division’s investigation of the company also uncovered extensive violations of FLSA overtime pay regulations. The agency cited Demon Demo on violations involving 126 workers and ordered it to pay $108,869 in back wages.

The Atlanta Journal Constitution suggested that Montoya’s family may seek legal action against the demolition company. “They don’t feel fully vindicated,” the family’s attorney told the AJC. “This is a company that received a $50,000 fine, yet this is the third time this company has been in violation.”

SOURCE: Fair Labor Standards Act › Teenager’s death leads to multiple FLSA and OSHA fines for Georgia company

What looked like an American dream, however, quickly turned into an American nightmare. The suit alleges that defendants Five Star Contractors LLC, Knights Marine & Industrial Services, Inc., David Knight, and Brian Knight “manipulated the H-2B guest worker program and defrauded the U.S. government and vulnerable migrant workers to generate a large pool of easily exploitable workers that Defendants could use to provide on-call labor to Gulf Coast shipyards.”

Additionally, the suit alleges that the defendants “deceived foreign workers about the terms and conditions of work being offered and deceived the U.S. Government about their intent to comply with the terms of the program including federal, state, and local worker protection laws.”

The labor recruiters named as defendants in the case provide wage labor to shipyards along the Gulf Coast.

The workers, believing they would be gainfully and legally employed in the U.S., “plunged their families into debt to pay hiring, visa, and relocation fees and reluctantly turned over deeds to their houses with agents of Five Star,” the suit alleges.

“Upon arrival in Mississippi, they were transported to a surveillance labor camp consisting of windowless portable metal buildings while they waited weeks to be leased out. They waited weeks without work as their debts grew and they became increasingly desperate for Five Star and Knights Marine to comply with their contractual promises to workers and the U.S. Government.”

The Brazilian workers seek unspecified damages and a declaration that their rights were violated by the defendants. Charges include unlawful conduct, RICO violations, Fair Labor Standards Act violations, breach of contract, common-law fraud, and breach of good faith and fair dealing.

Source: AP

SOURCE: Fair Labor Standards Act › Brazilian workers sue Gulf Coast shipyard recruiters

“As corporate budgets continue to tighten, more employers are looking to classify workers as independent contractors in an effort to reduce costs, such as overtime compensation, employee benefits, payroll taxes, unemployment compensation, and workers compensation,” the plaintiff’s attorney said. “The law is clear, however, that many of these workers do not qualify as independent contractors.”

A number of cases involving disputes over independent contractor classification have made it to the U.S. Supreme Court. The court has maintained there is no single test to determine the proper classification of a worker as an employee or independent contractor under FLSA regulations. “The total activity or situation” must be considered.

To determine the legal classification of a worker as an employee or independent contractor, the following factors must be considered:

• The extent to which the services rendered are an integral part of the principal’s business
• The permanency of the relationship
• The amount of the alleged contractor’s investment in facilities and equipment
• The nature and degree of control by the principal
• The alleged contractor’s opportunities for profit and loss
• The amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor
• The degree of independent business organization and operation

A bill called the “Independent Contractor Proper Classification Act of 2007” was proposed to Congress but never became law.

SOURCE: Fair Labor Standards Act › Will the great recession mean more FLSA lawsuits?

According to the Palm Beach Post, the plaintiffs alleged that the club “operated an illegal tip pool knowingly” and with “reckless disregard for the law.” Despite their courtroom victory, however, the plaintiffs failed to persuade the jury of those counts.

An attorney for the poker dealers told the Palm Beach Post that a federal judge will determine how much back pay will be awarded to each dealer, estimating that the total amount would reach $130,000 plus attorney’s fees. Most of the plaintiffs are no longer employed at the Kennel Club.

The ruling will likely boost earnings for card dealers in other Florida clubs where money is commonly skimmed from card dealer tips to pay floor supervisors. According to the plantiffs’ attorney, some dealers could go from making $40,000 to $70,000 with full tips.

The attorney told the Post that the club was “stealing the wages that somebody earned. Period. So their bottom line wouldn’t be affected.”

“They were taking from somebody without them knowing it and giving it to somebody who didn’t deserve it,” he told the Post.

Federal labor regulations allow businesses to pay employees less than minimum wage if the employees “customarily and regularly receive tips.” Attorneys representing the dealers successfully argued that because the club paid dealers $3 below the minimum wage, it shouldn’t have claimed tips to compensate supervisors “who had no direct service contact with the public.”

The Palm Beach Kennel Club is an established dog racing track dating back to 1932. The club also offers simulcast racing, a poker room, and dining options.

SOURCE: Fair Labor Standards Act › Card dealers win labor case against Palm Beach club

The Capital

According to the FLSA, workers such as the school secretaries must be paid for the number of hours they work each week. Because some secretaries work fewer hours in the summer months, the county averaged their pay so that they would receive consistent checks throughout the year. The county stopped averaging the secretaries’ pay recently in order to comply with FLSA standards.

But the school secretaries’ union doesn’t like the change, which it claims is a violation of the secretaries’ employment contract. The union filed a lawsuit against the county in circuit court last December. The school board has asked the judge to dismiss the case.

An attorney for the school board told The Capital that the courts would likely side with the FLSA. “You can’t generally have a contract of any kind that goes against the law,” he told The Capital. “The law always trumps the contract language.”

Although the change doesn’t alter the secretaries’ total compensation, some advocates claim that it makes budgeting a lot more difficult. To steady any financial swings that FLSA compliance would create for the secretaries, the school board has offered to deposit a percent of each check into a savings account in an effort to mimic averaging their pay.

The union has a month to respond to the school board’s motion to dismiss the case.

SOURCE: Fair Labor Standards Act › FLSA compliance creates difficulties for Annapolis school secretaries

The 1,424 employees were regularly required to work more than 60 hours a week, and to perform duties not usually associated with store management such as mopping floors, unloading trucks, stocking shelves and running cash registers. The jury awarded $17.8 million in back overtime pay and an equal amount in damages.

Family Dollar, based in Matthews, N.C., appealed the verdict, but the 11th U.S. Circuit Court of Appeals determined on Tuesday that the judge and jury were correct in their original assessment of the case and upheld the 2006 verdict.

According to the opinion written by Judge Frank M. Hull and joined by Judges Joel F. Dubina and Peter T. Fay, the jury “reasonably determined that Family Dollar failed to meet its burden of proving that Plaintiff store managers’ primary duty was management.”

According to Beasley Allen attorney Roman Shaul, who is evaluating similar FLSA cases, in this case there was never any dispute that the store managers worked these exorbitant hours each week. The only question was should the store managers be paid for the time they worked, or was everything worked beyond 40 hours each week truly “free labor.” He says that although the opinion was in favor of employees, it is widely seen as a conservative opinion that closely followed the Congressional intent and remedial purpose behind the FLSA.

“The crux of the case was that the store managers believed they were ‘managers’ in name only, and that their district manager really made most of the important decisions,” Shaul says. “Under the Family Dollar scheme, store managers performed essentially the same duties as the hourly employees, but received no overtime compensation. This case was an important victory for these hard working store managers.”

Shaul says the Family Dollar opinion is very useful and provides clear guidelines on how to evaluate the Department of Labor regulations interpreting the “Bona Fide Executive Exemption.” The new opinion clarifies the concerns and questions many people in the retail and service industry have had for years regarding how to comply with Department of Labor rules in an ever-changing business environment.

“At the end of the day, the Appeals Court would not accept Family Dollar’s scheme of simply labeling everyone a ‘manager,’ regardless of what duties they actually perform,” Shaul said.
Family Dollar (NYSE:FDO) operates 6,600 stores in 44 states, including Alabama. The discount chain offers low-cost products primarily to rural and small-town customers.

If you or a loved one feel you have been a victim of unfair wage practices, we want to know. Contact us today for a free legal consultation.

SOURCE: Fair Labor Standards Act › Federal Appeals Court renders important decision against Family Dollar in FLSA case

A three-judge panel in Tuscaloosa agreed with a 2006 jury that found the Matthews, N.C.-based company in violation of the Fair Labor Standards Act and awarded back pay to 1,424 employees, who routinely worked 60 to 70 hours a week. Their duties often included mopping floors, unloading trucks, stocking shelves and running cash registers.

The jury “reasonably determined that Family Dollar failed to meet its burden of proving that Plaintiff store managers’ primary duty was management,” said Judge Frank M. Hull in a statement. He was joined by Judges Joel F. Dubina and Peter T. Fay.

Family Dollar (NYSE:FDO) operates 6,600 stores in 44 states, including Alabama. The discount chain offers low-cost products primarily to rural and small-town customers.

Birmingham attorney Allen Schreiber represented the plaintiffs.

SOURCE: Birmingham Business Journal

SOURCE: Fair Labor Standards Act › Tuscaloosa judges uphold $35M Family Dollar ruling