Is Your Employer Stealing Your Wages, Not Paying Overtime, Circumventing Minimum Wage Rules, or Misclassifying Your Job?
Wage theft and unpaid overtime is on the rise. Have your rights been violated in the workplace? There are a number of ways in which your employer may shortchange your wages in violation of the law.
For example, your employer may claim that you cannot receive overtime pay unless you have permission to work extra hours or refuse to pay you for time spent doing certain work-related activities (i.e. putting on safety equipment, checking e-mails from home, going to before-and after-hours meetings).
At Gulisano Law, our wage and hour lawyers accept cases regarding a wide range of employment and wage-related issues for workers. We help workers who were wrongly denied overtime, underpaid, or forced to work off-the-clock to sue their employers and recover compensation for lost wages.
Wage Theft
Workers are entitled to a fair day’s pay for a fair day’s work. Unfortunately, many employers try to circumvent mandatory overtime laws. In many cases, companies are getting sophisticated at using contrived job descriptions and misclassifying workers.
Many of the case that Gulisano Law handles are considered “wage theft,” which is shorthand for a wide variety of ways that employers can try to deny you pay. Wage theft is, unfortunately, all too common in many lines of work and is rising at an alarming rate.
With some employers continually finding ways to skirt around these laws, it is important to have an experienced wage and hour attorney, who knows wage laws inside and out to protect you in the case of theft. Below are examples of cases our attorneys handle and common violations we see in our practice.
Employer Violates the Fair Labor Standards Act
The main federal law governing issues regarding employee wages and overtime hours is the Fair Labor Standards Act (“FLSA”). Since the Great Depression, the FLSA has been on the books to protect workers.
The central premise of the law is to insure all workers receive a minimum wage, get “time-and-a-half” for certain jobs and protect children in the workforce. Employers that violate the FLSA are liable for damages including double back pay.
Employer Fails to Pay Overtime or Miscalculates Hours Worked for Overtime
The FLSA looks to a standard seven consecutive day period in determining a workweek. For most workers, the FLSA calculates overtime based on any hours worked in excess of 40 hours in any one week. For example, if you worked Monday to Friday for 50 hours, you would be entitled to 10 hours of overtime pay at time and one half.
Some employers average workers’ hours over the course of two weeks, which is illegal and can cheat workers out of overtime pay. For example, an employee who works 30 hours one week and 50 hours the next has her hours averaged and her paycheck shows that she worked 40 hours each week. As a result, she never receives overtime pay for the 10 hours she worked in the second week.
Instead of giving their workers overtime pay, some companies may give their workers “comp time” or hours that can be used toward a vacation or sick time. Only state and local government employees, however, can legally receive “comp time” in lieu of overtime pay.
As Florida does not have state-specific laws regarding overtime, state employers must follow the overtime regulations set by federal wage and hour law. If you work in Florida and you believe you are not being paid the legal state minimum wage or overtime wages, your employer may be in violation of the FLSA.
Employer Misclassifies Workers as Independent Contractors
FLSA overtime violations can be triggered when employees are misclassified as exempt (meaning exempt from overtime). One way employers do this is by labeling “employees” as “independent contractors.”
Independent contractors are workers who are in business for themselves. They are considered self-employed. They are generally free to work on multiple projects at the same time, and take jobs on a freelance basis. In many cases, they can choose when, where, and how they perform the work.
Employees, on the other hand, are workers that are employed by a business, person, or government entity. In an employee-employer relationship, the employer generally exercises a high degree of control over the wages, hours, or working conditions of the employee.
The distinction between independent contractors and employees is an important one. Employees have many legal rights that independent contractors do not. Those can include the right to overtime pay, the right to meal breaks, and the right to a minimum wage.
Employer Misclassifies Workers as Salaried Employees
The FLSA does not prohibit workers from being salaried. However, there is a common misconception that being salaried, as opposed to hourly, automatically means that you are not eligible for overtime. Receiving a salary is not an automatic exemption from overtime rules and, as is the case with independent contractors, often employers intentionally misclassify workers to avoid having to pay for overtime.
Instead, under the FLSA workers are either “exempt” or “nonexempt” for overtime purposes. Generally, exempt employees have no right to overtime. For most workers, classification as exempt or nonexempt depends on three factors:
- How much they make;
- How they are paid; and
- The type of work performed (job duties).
To be exempt, workers must earn more than $455 per week ($23,600 per year) and be salaried. The test does not end there, however. To be exempt from overtime, workers must also perform professional, executive, or administrative tasks.
To be considered an exempt professional, the employee must perform work that is intellectual and requires specialized education. For example, many companies try to misclassify bookkeepers and technicians as exempt. Those positions may require skill but usually do not rise to the level of professional for FLSA purposes.
Typically, courts have held that workers have exempt executive duties if they supervise two or more people, have management as their primary function, and have the ability to make hiring or firing decisions. Many employers try to treat front line supervisors as exempt by giving them fancy titles. However, it is the actual work that the worker performs, which counts, not the job title.
The Department of Labor describes exempt administrative job duties as “Office or non-manual work, which is directly related to management or general business operations of the employer or the employer’s customers; and a primary component of which involves the exercise of independent judgment and discretion about matters of significance.”
Employer Fails to Pay for All Hours Worked
If your employer is not properly tracking your work time, it is possible you are being cheated out of overtime pay because your employer is not properly calculating how much time you worked per week. Time spent working for the benefit of your employer, regardless of whether you are on the employer’s premises, is considered compensable time and should be paid.
Examples of compensable time include time spent:
- Checking emails from home;
- On-call;
- Turning on computers;
- Cleaning equipment;
- Putting on equipment;
- Undergoing security checks;
- Working through meal breaks;
- Attending training or safety classes;
- Taking short breaks that last between 5 and 20 minutes.
Employer Fails to Allow for Meals and Breaks
If you are required to remain at your workstation, are working from home, or required to work through your break, that time counts towards the 40-hour overtime threshold.
Employer Fails to Pay Minimum Wage
Despite federal and state laws, some employees are cheated out of minimum wage. Day-rate workers and tipped employees are particularly susceptible to minimum wage violations because of how they are paid. The federal minimum wage is $7.25 per hour, but some states have passed legislation enforcing a higher minimum wage.
In Florida, workers must be paid at least the hourly state minimum wage by their employers for all hours worked. Florida law requires the Department of Economic Opportunity to calculate a minimum wage rate each year. For 2019, Florida’s minimum wage is $8.46 per hour.
Under the FLSA, employers may receive a tip credit towards the satisfaction of the minimum wage for tipped employee. As of 2019, tipped employees in Florida must be paid a tipped minimum wage of $5.44 per hour.
Can I Be Retaliated Against for Filing a Wage and Hour Lawsuit?
It is illegal for employers to retaliate against workers who file wage and hour lawsuits. Retaliation can include firing or demoting workers, reducing hours, assigning undesirable shifts, cutting down job duties, and giving false performance reviews that negatively affect workers’ positions.
Of course, if your employer is already violating the law, she or he may violate this one as well. This is something we can discuss and address if you are still working with the employer stealing your wages. Either way, if you were retaliated against after filing a lawsuit for lost wages, you likely would be able to file a separate, individual lawsuit against your employer.
How Much Money Can I Get in a Lawsuit?
This will vary depending on the specifics of your case. In most cases, you can seek the difference between what you were paid and what you should have been paid under the law. Employees can sue for wages that were lost during the two years prior to the filing of the lawsuit. If the court finds that an employer purposely broke the law, however, it may allow employees to recover compensation for up to three years.
How Much Does a Lawyer Cost?
At Gulisano Law, our lawyers only charge you if win a favorable settlement or award. In these cases, we will collect a percentage of the final verdict or settlement. If you believe you have been cheated out of your well-deserved earnings, our attorneys may be able to help.
Our attorneys are dedicated to fighting for those who were not paid properly and we are not afraid to take your case to court in order to get you the money you deserve. If you were denied overtime pay or were not properly paid for your work, you may be able to file a lawsuit against your employer to collect compensation for your unpaid wages. To find out if you have a case, contact Gulisano Law today.