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

Build-A-Bear Workshop, an international retailer with more than 400 locations worldwide, allows customers to design and create their own teddy bears. The Wage and Hour Division found that many Build-A-Bear’s Midwestern retail locations violated government regulations prohibiting workers under 18 years old from performing hazardous activities and working in potentially dangerous environments.

In one instance, 16- and 17-year old employees routinely loaded and operated industrial trash compactors. Another violation involved underage employees operating and riding in a freight elevator.

Enrique Rodriguez, the Wage and Hour Division’s district director in St. Louis, told Wichita’s KAKE that “Every year, young employees are injured while performing prohibited work.” His office launched regional investigations as part of the child labor mall initiative, aimed at bringing shopping malls into better compliance with FLSA regulations.

“The department’s hazardous orders regulations exist to promote safety and prevent workplace injuries in the nation’s youth workforce,” he told KAKE.

Rodriguez also told KAKE that Build-A-Bear has fully cooperated with the Wage and Hour Division and has taken the proper measures to avoid future violations.

Earlier this year, the same child labor initiative uncovered multiple violations of the FLSA youth employment provisions by retail establishments Miami, Ft. Lauderdale, and West Palm Beach. A random investigation of 19 stores, restaurants, and movie theaters at 3 different malls found 50 minors operating dangerous equipment such as trash compactors and paper balers.

SOURCE: Fair Labor Standards Act › Teddy bear company cited for FLSA child labor violations

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

In March, Secretary of Labor Hilda L. Solis announced her intentions to revamp and empower the Wage and Hour Division, saying that she would increase the Division’s staff size by a third in an effort to “refocus the agency on [its] enforcement responsibilities.” The addition of new field investigators, she said, “will reinvigorate the work of this important agency, which has suffered a loss of experienced personnel over the last several years.”

Last year, the nonpartisan Government Accountability Office (GAO) found that the Wage and Hour Division’s enforcement of FLSA laws dropped to record lows under the Bush Administration. Most abused by employers were FLSA regulations guaranteeing minimum wage and overtime compensation. Abuse of the laws grew while enforcement of the laws shrank, creating what wage theft activist Kim Bobo called a “national crisis at this moment in our nation” to the tune of $19 billion per year in unpaid overtime alone.

Bobo, who is the founder and executive director of the Interfaith Worker Justice program, supported the GAO investigators in their findings. “The wage and hour division is so understaffed,” Bobo said, “that it is actually now doing fewer investigations of wage and hour complaints than it did in 1941, the year it was founded. Wages are simply being stolen.”

The appointment of Hilda Solis as Secretary of Labor is as symbolic as it is significant, and promises to bring about change for workers who have endured workplace abuse for years. The daughter of immigrants from Nicaragua and Mexico, Solis is both personally and professionally familiar with the plight of the working class, and particularly the struggles of the working class immigrant.

“The U.S. Department of Labor is the voice for working families, and I am dedicated to ensuring compliance with federal labor laws to both strengthen our economy and protect workers in this country,” Solis said.

Sources: http://www.dol.gov/esa/whd/media/press/whdpressVB3.asp?pressdoc=national/20090305.xml

http://www.pww.org/article/articleview/13416/

http://www.bostonreview.net/BR34.3/maclean.php

SOURCE: Fair Labor Standards Act › Solis works to revamp and empower Wage and Hour Division

According to the GAO report, the WHD “frequently responded inadequately to complaints, leaving low wage workers vulnerable to wage theft.” The GAO came to this conclusion after conducting a broad undercover investigation in which it filed 10 fictitious worker complaints in WHD district offices throughout the country.

“The undercover tests revealed sluggish response times, a poor complaint intake process, and failed conciliation attempts, among other problems,” the report states. The GAO also documented one case in which a WHD employee lied about investigating a claim when actually no work at all was done to investigate the fictitious claim.

One of the investigations was filed by a fictitious secretary in Virginia who complained that she was not being paid the minimum wage. The GAO’s fictitious employer did not refute the receptionist’s claim, but refused to pay the back wages owed anyway. The WHD investigator “accepted the refusal without question and informed the fictitious employee of his right to file a lawsuit.” The fictitious employee then asked why the WHD couldn’t be of more help and was told to contact his Congressman.

Another fictitious claim stated that children were using heavy machinery at a California meat packing facility. But 4 months later, the WHD still had not taken any action. In fact, the complaint was never recorded in the WHD’s database, even though the WDH claims that child labor complaints are its top priority.

It’s bad enough the workers in labor intensive jobs often find themselves preyed upon by unscrupulous employers. Add to that a bad economy in which some employers take desperate (and illegal) cost-cutting measures and top it off with an ineffective government bureaucracy, and you have to wonder:  why does the Fair Labor Standards Act exist if our Department of Labor won’t take even the smallest measures to enforce it? What recourse do workers have?

At the end of its undercover study, the GAO was still waiting for the WHD to begin investigating 3 of the fictitious claims, all of which had been delayed by months. During the course of the study, the GAO also exposed many real cases involving hundreds of workers whose employers the WHD never investigated.

According to the report, the “GAO found cases where it took over a year for WHD to respond to a complaint, cases closed based on unverified information provided by the employer, and cases dropped when the employer did not return phone calls.”

“GAO’s overall assessment of the WHD complaint intake, conciliation, and investigation processes found an ineffective system that discourages wage theft complaints,” the report states.

SOURCE: Fair Labor Standards Act › Department of Labor fails to uphold and enforce FLSA regulations

“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?

Buffalo Rock is one of the country’s largest privately owned Pepsi-Cola bottlers with 14 distribution centers in Alabama, Florida, and Georgia. Its distribution area covers a population of 6.5 million.

Employees represented by the suit contend that Buffalo Rock violated the Fair Labor Standards Act when it failed to pay them and others in the company for work performed over the regular 40 hour work week.

“Buffalo Rock knowingly, intentionally and willfully violated the Fair Labor Standards Act by failing to pay plaintiffs and all similarly situated employees the overtime compensation to which defendant Buffalo Rock knew they were entitled,” the lawsuit says.

Buffalo Rock maintains that the FLSA’s overtime clause doesn’t apply to the overtime hours clocked by the workers represented by the lawsuit.

Provisions for overtime pay are a common basis for many lawsuits citing FLSA violations. FLSA regulations exempt certain workers, such as executive, administrative, professional and outside sales employees, from overtime. However, according to the Department of Labor, “employees generally must meet certain tests regarding their job duties and be paid on a salary basis at not less than $455 per week.” Misclassification of employees, unclear employment agreements, or simple misunderstanding of the law are common violations of FLSA provisions.

SOURCE: Fair Labor Standards Act › class action filed against Alabama company for FLSA overtime violations

Smith’s restaurant in Bolivar will pay more than $36,000 in fines and back wages stemming from its violations of the FLSA’s overtime, minimum wage, and child labor regulations. $34,625 of the money recovered by the Wage and Hour Division will compensate 54 employees for back wages.

Investigators found the restaurant had violated minimum wage laws by skimming money from the servers’ hourly pay to compensate bus staff. The restaurant also paid regular wages to ten hourly employees for time worked over 40 hours per workweek, which constitutes a violation of the FLSA standards for overtime pay.

The restaurant had to pay nearly $1,500 in penalties to the Labor Department for allowing employees under 18 years old to work more than three hours on school days and past 9 p.m. during the summer.  The FLSA prohibits workers under age 18 from working more than three hours on school days (18 hours per week) and eight hours on days with no school (40 hours per week). Minors may not work work later than 7 p.m. when school is in session or 9 p.m. during summer break.

The restaurant has cooperated fully with the Department of Labor, reports the Bolivar Herald-Free Press.

“The Labor Department’s Wage and Hour Division is committed to protecting the rights of workers by ensuring that they receive the wages to which they are entitled,” James Koren, Kansas City district director of the Wage and Hour Division, told the Bolivar Herald-Free Press.

“Also, the department’s child labor provisions serve to strike a balance among providing invaluable work experience to our nation’s youth, safety and educational responsibilities,” he said.

SOURCE: Fair Labor Standards Act › Missouri restaurant pays back wages and penalties for FLSA violations