LAWSUITS NEWS & LEGAL INFORMATION
Unpaid Overtime Pay
By Heidi Turner
Employees who work more than 40 hours in a week are entitled to overtime pay, which is one-and-one-half times the regular rate of pay, if the employees are not exempt from pay for overtime. Overtime laws are contained in the United States Fair Labor Standards Act (FLSA), which sets out when overtime kicks in and how much employees must be paid for working overtime. Employers who violate overtime laws could face lawsuits alleging they violated laws on overtime.
Employees who are not exempt from overtime (exemption is based on administrative or executive duties) are eligible for one-and-one-half times the regular rate of pay for hours worked above 40 in a week or eight in a day. Violations of overtime labor laws include failure to pay employees overtime when they work overtime hours, failure to include non-discretionary bonuses when calculating overtime pay and misclassifying employees as exempt from overtime when they are not.
The FLSA requires most employees in the US be paid at least the federal minimum wage for all hours worked and overtime pay at one-and-one-half times the regular rate of pay—including non-discretionary bonuses—for all hours worked over 40 in a workweek. Many states also have laws governing minimum wage and overtime hours.
Section 13(a)(1) of the FLSA provides exemptions from overtime pay for employees who are executive, administrative, professional and/or outside sales employees. There are certain tests that must be met for employees to be exempt from overtime pay; simply using "administrative" in a job title does not automatically exempt the employee from overtime pay.
A recent ruling by the Ninth Circuit agreed with the National Labor Relations Board (NLRB) that employment arbitration agreements preventing employees from joining together to bring legal claims violates the National Labor Relations Act (NLRA). Specifically, in a 2-1 ruling, the court agreed that mandatory arbitration violates employees' rights to engage in concerted activity, as upheld by NLRA sections 7 and 8.
The ruling does not mean that all employee arbitration agreements are unenforceable but does open the door to employees challenging some arbitration agreements. This means that in some situations where employees have signed an arbitration agreement, they may still be able to file a class action lawsuit if their rights have been violated.
Section 13(a)(1) of the FLSA exempts executive, administrative, professional, and outside sales employees from the FLSA's overtime requirements--as long as they meet certain tests regarding job duties. If these tests are met, they are ineligible for overtime.
To qualify for an exemption from overtime pay requirements under these categories, the employee must generally pass a two-pronged test consisting of a salary basis test and a duties test.
A salary test is usually met if the employee is paid a fixed amount of money weekly, bi-weekly and/or monthly, and there is no deduction from this fixed rate based on the quantity or quality of the work.As of December 1, 2016, the salaried threshold for employees to be exempted from overtime pay will be $913 per week ($47,476 per year). Meanwhile the salary exemption threshold for highly compensated employees is increased to $134,004 annually. This threshold will be updated every three years, starting on January 1, 2020. Full-time salaried employees do not make $47,476 annually will be eligible for overtime pay (with a few exceptions). Although the change increases the threshold for salaried employees to be exempted from overtime pay, the formula for calculating overtime pay will not change.
A duties test is different for executive, administrative and professional employees. The duties test is met by the actual work being done as opposed to "job titles" or written "job descriptions."
To Be Exempt as an Executive Employee, a Person Must:
These employees engage in making sales or obtaining orders away from their employer's place of business. They don't devote more than 20 percent of the hours worked by non-exempt employees of the employer to work other than the making of such sales.
Wage and hour lawsuits involve violations of laws concerning minimum wage, meal periods and rest breaks, off-the-clock work, documentation of wages, compensation of work-related expenses and overtime pay.
Donning and doffing refers to the time spent putting on and taking off uniforms or required work safety gear to properly perform job duties. Often, work gear can take 10 minutes or more to put on and take off for each shift, plus time spent dressing and undressing for breaks, but employers frequently do not pay for that time. In some cases, employees should be paid for their time spent putting on and taking off required work clothing and safety gear and, if the employee is full time, the unpaid time could actually mean overtime is owed.
In addition to uniforms and safety gear, some employees at restaurants are required to come in 15 minutes early to learn about the day's specials, set tables and taste food so they can recommend it to customers. Although this time is required for work—and although it benefits the employer—in some companies such time is unpaid, meaning workers are giving up an extra 15 minutes per shift for the benefit of their employer. For employees who work full-time, that extra 15 minutes per shift is unpaid overtime, and over the course of a year, that unpaid overtime could add up to hundreds of dollars of unpaid work.
A lawsuit has reportedly been filed against Bloomin' Brands, Inc, owner of Outback Steakhouse, alleging violations of the Fair Labor Standards Act. the lawsuit alleges the company required employees to perform unpaid work prior to shifts, refused breaks and failed to pay for mandatory meetings and training sessions.
Bloomin' Brands has denied the allegations.
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Overtime Labor Laws
Employees who are not exempt from overtime (exemption is based on administrative or executive duties) are eligible for one-and-one-half times the regular rate of pay for hours worked above 40 in a week or eight in a day. Violations of overtime labor laws include failure to pay employees overtime when they work overtime hours, failure to include non-discretionary bonuses when calculating overtime pay and misclassifying employees as exempt from overtime when they are not. Overtime Laws
Section 13(a)(1) of the FLSA provides exemptions from overtime pay for employees who are executive, administrative, professional and/or outside sales employees. There are certain tests that must be met for employees to be exempt from overtime pay; simply using "administrative" in a job title does not automatically exempt the employee from overtime pay. Overtime and Arbitration
The ruling does not mean that all employee arbitration agreements are unenforceable but does open the door to employees challenging some arbitration agreements. This means that in some situations where employees have signed an arbitration agreement, they may still be able to file a class action lawsuit if their rights have been violated.
Defining Exemptions from Overtime Pay
To qualify for an exemption from overtime pay requirements under these categories, the employee must generally pass a two-pronged test consisting of a salary basis test and a duties test.A salary test is usually met if the employee is paid a fixed amount of money weekly, bi-weekly and/or monthly, and there is no deduction from this fixed rate based on the quantity or quality of the work.As of December 1, 2016, the salaried threshold for employees to be exempted from overtime pay will be $913 per week ($47,476 per year). Meanwhile the salary exemption threshold for highly compensated employees is increased to $134,004 annually. This threshold will be updated every three years, starting on January 1, 2020. Full-time salaried employees do not make $47,476 annually will be eligible for overtime pay (with a few exceptions). Although the change increases the threshold for salaried employees to be exempted from overtime pay, the formula for calculating overtime pay will not change.
A duties test is different for executive, administrative and professional employees. The duties test is met by the actual work being done as opposed to "job titles" or written "job descriptions."
To Be Exempt as an Executive Employee, a Person Must:
- customarily and regularly direct the work of two or more other full-time employees;
- have management as his/her "primary duty;"
- have the authority to hire and fire, or effectively to recommend such action or other changes in status;
- customarily and regularly exercise discretionary powers;
- spend no more than 20 percent of his/her hours in the workweek in activities not directly and closely related to the above duties, or 40 percent in a retail or service establishment.
- be paid "on a salary basis."
- have as his/her "primary duty;"
- office or non-manual work directly related to management policies or general business operations; or
- performing work in educational administration, which work is directly related to academic instruction or training
- customarily and regularly exercise discretion and independent judgment;
- regularly and directly assist a bona fide executive or administrative employees; or perform under only general supervision work that is specialized or technical and that requires special training, experience, or knowledge; or perform special assignments or tasks under only general supervision;
- spend no more than 20 percent of his/her hours in the workweek in activities not directly and closely related to the above duties, or 40 percent in a retail or service establishment; and
- be paid "on a salary basis."
- have as his/her primary duty work which requires:
- advanced knowledge customarily requiring extensive education; or
- originality and creativity in a recognized artistic field; or
- teaching or otherwise imparting knowledge as a teacher in a school or in an academic or educational institution; or
- theoretical and practical application of highly specialized knowledge in computer systems analysis, programming, and software engineering in a computer/software occupation;
- consistently exercise discretion and judgment;
- perform work which is predominantly intellectual and varied, and which cannot be standardized in relation to a given period of time.
- spend no more than 20% of his/her hours in the week in activities not essential and necessarily incidental to the above duties; and
- be paid on "a salary basis."
Outside Sales Exemption
These employees engage in making sales or obtaining orders away from their employer's place of business. They don't devote more than 20 percent of the hours worked by non-exempt employees of the employer to work other than the making of such sales. Wage and Hour Lawsuits
Donning and Doffing Violations
In addition to uniforms and safety gear, some employees at restaurants are required to come in 15 minutes early to learn about the day's specials, set tables and taste food so they can recommend it to customers. Although this time is required for work—and although it benefits the employer—in some companies such time is unpaid, meaning workers are giving up an extra 15 minutes per shift for the benefit of their employer. For employees who work full-time, that extra 15 minutes per shift is unpaid overtime, and over the course of a year, that unpaid overtime could add up to hundreds of dollars of unpaid work.
A lawsuit has reportedly been filed against Bloomin' Brands, Inc, owner of Outback Steakhouse, alleging violations of the Fair Labor Standards Act. the lawsuit alleges the company required employees to perform unpaid work prior to shifts, refused breaks and failed to pay for mandatory meetings and training sessions.
Bloomin' Brands has denied the allegations.
Unpaid Overtime Legal Help
If you or a loved one is owed unpaid overtime, you may qualify for damages or remedies that may be awarded in a possible class action lawsuit. Please click the link below to submit your complaint to a lawyer who will review your claim at no cost or obligation.Last updated on
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OVERTIME LEGAL ARTICLES AND INTERVIEWS
Revel Systems to Settle California Unpaid Wages Lawsuit for $2.75 Million
Oakland, CA The District Court for the Northern District of California has approved a settlement in a class action California unpaid wages lawsuit. In the lawsuit, Bisaccia v. Revel Systems, a group of inside sales representatives claim that Revel Systems, Inc. (Revel) failed to pay overtime wages as required under the federal Fair Labor Standards Act (FLSA). Under the terms of the settlement, a group of 149 plaintiffs will share a total of $2.75 million.
Revel sells a cloud-based Point of Sale (POS) system. Restaurants, retail stores and other enterprises throughout the world use it because, in part, it integrates with Apple’s iPad. The POS system tracks sales, inventory and includes payroll and customer relationship management features.
Joseph Bisaccia worked for Revel as a Sales Executive out of Revel’s office in Tempe, Arizona where he cold-called potential buyers. Revel also provided him with leads to follow in an effort to make sales. Revel employs many inside sales representatives to work in a similar capacity.
Between 2014 and 2017, Bisaccia and other sales reps claim that they were pressured to meet ambitious monthly sales goals that could not be achieved within the limits of a 40-hour workweek. He worked, on average, two to six hours of overtime every week. In addition, he and other plaintiffs typically worked overtime hours on weekends, either from Revel’s office or from home, where they took and made calls to potential customers. It was nonstop hustle.
Revel routinely provided meals to inside sales representatives so that they could work through lunch breaks. In addition, the company required inside salespersons to work overtime during the last week of each month in order to meet the company’s sales quotas. For example, during the workweek ending on October 30, 2016, Bisaccia estimated that he worked 55 hours. He was, however, not compensated for any of the overtime hours he worked in that week or in any previous workweek.
Instead, Revel misrepresented to the sales representatives that they were exempt from minimum wage and overtime protections under FLSA. Rather than pay Bisaccia and other inside salespersons one and one-half times their regular hourly rate of pay for all hours worked over 40 in a given workweek, Revel paid only the regular hourly rate. During the period of time in question, the company kept no records of actual hours worked.
As a general principle, the FLSArequires employers to pay an overtime premium of one and a half times the employee’s regular rate for all hours worked in excess of 40 within a workweek and to also pay at least the minimum wage for all hours worked. However, the law also establishes certain exceptions to these requirements. The workers not protected by overtime laws are referred to as ”exempt.”
The legal issue in many overtime lawsuits is whether a job fits within one of those exceptions. If not, then an employer must comply with the FLSA minimum wage and overtime requirements. Commissioned sales employees seem to present a particular puzzle to employers.
Inside salespeople are those who do not leave the office to make sales. These are the workers who try to make sales over the telephone, internet or by mail. They know the “click” of the dreaded auto dialer. They are generally covered by overtime protections.
Outside salespeople customarily work away from the employer’s place of business. They have more control over their time and conditions of employment and are usually not entitled to earn overtime.
Whether a worker is an inside or an outside salesperson depends on the job duties performed, rather than a particular title. A common mistake many employers make is to treat all commissioned salespeople as exempt employees. It may be a particularly tempting to do so because not having to pay overtime may save an employer on payroll.
This is not one of those situations that makes new law. Although the determination of whether an employee works in an inside sales capacity or an outside sales capacity can be very fact-specific, the law is not new or unclear. Nonetheless, violations of this provision of the FLSA remain quite common.
Commissioned salespeople who usually work from their employer’s place of business and do the hard work of cold-calling and following employer-provided leads to sell the employer’s goods or services are likely entitled to be paid overtime for hours beyond a 40-hour workweek. The settlement in Bisaccia is a reminder of this basic rule.
READ MORE
Workers Win California Unpaid Wages Lawsuit over Shift Call-Ins
Los Angeles, CA It is clear that workers who show up for a shift but are then told to go home because there is not enough work are entitled to wages under California law. The decision in Ward v. Tilly’s, a recent California unpaid wages lawsuit takes it a step further. If you have to call before your scheduled shift is to begin to find out if you really should go in, then you are entitled to wages for a portion of your shift, even if the answer is “no.”
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Northern California Horse Training Facilities Busted for Wage and Hour Violations and Inhumane Workers’ Housing
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April 12, 2019
All in a day’s work
Revel sells a cloud-based Point of Sale (POS) system. Restaurants, retail stores and other enterprises throughout the world use it because, in part, it integrates with Apple’s iPad. The POS system tracks sales, inventory and includes payroll and customer relationship management features.
Joseph Bisaccia worked for Revel as a Sales Executive out of Revel’s office in Tempe, Arizona where he cold-called potential buyers. Revel also provided him with leads to follow in an effort to make sales. Revel employs many inside sales representatives to work in a similar capacity.
High pressure sales quotas, no overtime
Between 2014 and 2017, Bisaccia and other sales reps claim that they were pressured to meet ambitious monthly sales goals that could not be achieved within the limits of a 40-hour workweek. He worked, on average, two to six hours of overtime every week. In addition, he and other plaintiffs typically worked overtime hours on weekends, either from Revel’s office or from home, where they took and made calls to potential customers. It was nonstop hustle.
Revel routinely provided meals to inside sales representatives so that they could work through lunch breaks. In addition, the company required inside salespersons to work overtime during the last week of each month in order to meet the company’s sales quotas. For example, during the workweek ending on October 30, 2016, Bisaccia estimated that he worked 55 hours. He was, however, not compensated for any of the overtime hours he worked in that week or in any previous workweek.
Instead, Revel misrepresented to the sales representatives that they were exempt from minimum wage and overtime protections under FLSA. Rather than pay Bisaccia and other inside salespersons one and one-half times their regular hourly rate of pay for all hours worked over 40 in a given workweek, Revel paid only the regular hourly rate. During the period of time in question, the company kept no records of actual hours worked.
Are inside sales employees protected by overtime laws?
As a general principle, the FLSA
The legal issue in many overtime lawsuits is whether a job fits within one of those exceptions. If not, then an employer must comply with the FLSA minimum wage and overtime requirements. Commissioned sales employees seem to present a particular puzzle to employers.
Inside salespeople are those who do not leave the office to make sales. These are the workers who try to make sales over the telephone, internet or by mail. They know the “click” of the dreaded auto dialer. They are generally covered by overtime protections.
Outside salespeople customarily work away from the employer’s place of business. They have more control over their time and conditions of employment and are usually not entitled to earn overtime.
Whether a worker is an inside or an outside salesperson depends on the job duties performed, rather than a particular title. A common mistake many employers make is to treat all commissioned salespeople as exempt employees. It may be a particularly tempting to do so because not having to pay overtime may save an employer on payroll.
Why is the overtime settlement important?
This is not one of those situations that makes new law. Although the determination of whether an employee works in an inside sales capacity or an outside sales capacity can be very fact-specific, the law is not new or unclear. Nonetheless, violations of this provision of the FLSA remain quite common.
Commissioned salespeople who usually work from their employer’s place of business and do the hard work of cold-calling and following employer-provided leads to sell the employer’s goods or services are likely entitled to be paid overtime for hours beyond a 40-hour workweek. The settlement in Bisaccia is a reminder of this basic rule.
READ MORE
Workers Win California Unpaid Wages Lawsuit over Shift Call-Ins
April 8, 2019
READ MORE
Northern California Horse Training Facilities Busted for Wage and Hour Violations and Inhumane Workers’ Housing
April 3, 2019
Oakland, CA: A Northern California owner and operator of two horse training facilities--Portola Valley Training Center in Menlo Park and Gilroy Gaits in Hollister, doing business as EWC & Associates Inc.—has been reigned in by federal court and ordered to pay $1,270,683 to 30 employees for several work visa program violations and California labor law violations.READ MORE
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In June 2007 I was ordered to work 'light duty, under 40 hrs per week' by my physician in writing but was forced to work 45 hours regardless of my doctors orders in writing to the head office.
I was then forced to resign June 24, 2007 from Big Lots who in turn also refused to pay me vacation pay due me for that calender year.
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