Andy’s normal workday starts at 7am and ends anywhere from 7pm up until 10pm—15-hour days are not uncommon. And he isn’t alone: Nobody at the moving company receives overtime pay, but that might change.
Overtime lawsuits indicate that Americans are increasingly standing up for their rights and demanding overtime compensation. The number of overtime lawsuits filed last year nationwide, including California overtime lawsuits, increased by 32 percent since the height of the recession in 2008—a time when employers had the opportunity to take advantage of their workers. During the recession many employees worked overtime without question—just trying to keep their jobs.
But the US is getting back on its feet. The majority of overtime lawsuits recently filed have to do with being forced to work off the clock and/or being misclassified as exempt from overtime requirements. In Andy’s case, the former applies. In Ron’s situation, it’s the latter: he also works for a moving company but is paid a salary. Ron typically works 70 hours a week, driving a moving van and physically moving furniture. He doesn’t supervise anyone and believes he has been misclassified.
Just because an employee is salaried does not mean they are not entitled to overtime. It is an employee’s duties, not how they are paid, that determines if they are exempt and not entitled to overtime pay.
Lumpers and Overtime
Sometimes lumpers—people who schlep boxes to and from trailers or warehouses--work for moving companies. They are casual laborers and are typically paid minimum wage. Often they are hired through a labor pool by the moving company and must be paid overtime if they work more than 40 hours per week. Lumpers also work—indirectly-- for Walmart. They are employed through labor agencies or staffing agencies that supply workers to big-box corporations like Walmart.
Some Walmart lumpers are paid by “piece work”, which is an archaic pay scheme intended to make employees work faster and faster within an 8-hour day. But they often work through lunch and don’t take breaks because if the containers aren’t unloaded in time, they don’t get paid.
In September 2012, Walmart warehouse workers in Illinois went on strike over unfair wages. The workers claimed they had to show up early for work and stay late without being paid for their time and allege that the temp agency that employs them has violated federal wage and hour laws. Under the Fair Labor Standards Act (FLSA), they should be paid overtime (time-and-a-half) after 40 hours—regardless which state they are in.
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Under FLSA, employees are exempt from overtime if they are executives who manage and hire and fire employees; professionals such as doctors and lawyers with advanced degrees; or administrators who make key decisions and supervise employees. Clearly, most workers employed by moving companies are entitled to overtime pay.
According to one employment law firm, more than 7,000 wage-and-hour lawsuits, many of them class actions, were filed in federal court last year, nearly quadruple the 2000 total. And in 2011, the Labor Department recovered $225 million in back wages for employees, up 28 percent from 2010.
Given these statistics, moving company employers might want to reconsider their overtime policy.