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The Fair Labor Standards Act (FLSA) is the law that governs the pay of employees in the United States.  It requires that companies pay its employees at least minimum wage and at least time and a half for all hours over 40 in a given workweek.  In order to get around this requirement, many employers classify their employees as independent contractors.  Unlike employees, independent contractors are not entitled to minimum wage, overtime, unemployment benefits, workers’ compensation benefits, protection under the Family Medical Leave Act, Title VII, etc.  Therefore, if your company is misclassifying you as an independent contractor when you are truly an employee, you could be missing out on a lot of owed compensation and benefits.


The U.S. Department of Labor states that the general rule of thumb is “most workers are employees – not independent contractors.”  Courts look at several factors to determine if an individual is an employee or an independent contractor.  If your job fits into just one of the below “employee” categories, you may be misclassified as an independent contractor and entitled to compensation.


Do any of the below “employees” statements apply to you?


Employees: Independent Contractors:
Not allowed to hire other workers to perform job Allowed to hire other workers to perform job
Employer controls how the worker performs the work Worker controls how they perform the work
Worker typically only performs the work for one company Worker can perform similar jobs for multiple companies
Worker does not have an opportunity to make more money by working more efficiently Worker has an opportunity to make more money by performing job more efficiently
Worker uses equipment and supplies given to them from their employer Worker provides his own equipment, supplies, uniform, truck, etc.
The work performed is not a specially skilled job Worker provides a specific special skill to perform the work
Worker is employed for an indefinite period of time or for a longer period of time like other employees Worker performs the work for a shorter, set period of time
The work performed is needed to run the company The work performed is not integral to the business but more likely a specific, special job
Worker is bound by company rules like other employees
The worker is trained to perform the work by the company



If Your Employer Misclassified You As An Independent Contractor, You Could Be Entitled To Compensation

If any of the above statements in the “employee” column apply to your job, you may be misclassified as an independent contractor and entitled to minimum wage, overtime, liquidated damages, attorneys’ fees and costs.   your overtime pay at a rate of 1 ½ of your regular rate for the time period of the

In order to recover these damages, you would be required to file a lawsuit.  Overtime lawsuits can also be filed as a collective or class action which permits other similar employees join the case to recover their overtime as well.   This permits employees a way for pursuing relatively small claims together that could otherwise be too costly.

If It’s Not Right, You Have To Fight!  At Martin & Martin, our Atlanta wage attorneys successfully represent employees like you every single day.  You worked hard for your pay, let us work hard to get you what you are owed.  Please contact us online or call us at (404) 831-8721 for a free consultation.


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The general rule under the Fair Labor Standards Act (FLSA) for overtime is: All Employees Are Entitled To Overtime.  Under 29 U.S.C. § 207(a)(2), employers must pay employees at least one and one-half times their regular pay rate for all hours over 40 in a workweek.  There are, however, three main exceptions or “exemptions” to this general rule: bona fide executive, administrative, and professional.  The most litigated exemption is the administrative exemption.

Pursuant to the federal regulations, an employee fits within the administrative exemption of the FLSA if the employee is:

  • Compensated on a salary or fee basis at a rate of not less than $455 per week;
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On March 3, 2016, the Department of Labor (DOL) issued a press release regarding its enforcement initiative in the hospitality/restaurant industry in “college towns” stating that many companies are in violation of the Fair Labor Standards Act (FLSA) wage and hour laws.  The DOL has collected almost $100,000 for workers who were not paid properly.

During the investigation, the DOL found that because hospitality jobs are likely filled by students, temporary, or foreign workers who are often unfamiliar with wage laws.  Additionally, it found that language barriers, fear of retaliation, and fears of immigration status can cause these individuals to not exercise their rights allowing companies to take advantage of them.

Some of the violations found by the DOL include:

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On February 09, 2016, the U.S. Department of Labor (DOL) filed a federal lawsuit in the U.S. District Court for the Northern District of Georgia, against Apollo Industries and individually against the plant supervisor alleging that they failed to pay employees at least minimum wage ($7.25 per hour) and legally required overtime.   The DOL alleges that the company only paid workers “straight time” for hours worked beyond 40 in a workweek as opposed to time and a half of their regular hourly rates of pay.  The DOL also alleges that for some of the hours that the employees worked, the company failed to compensate the workers at least $7.25 per hour.

In filing the federal FLSA lawsuit, the DOL is seeking to recover unpaid minimum wage and overtime compensation for over 190 employees since February 10, 2012 and an equal amount of liquidated damages.  Liquidated damages are also referred to as “double damages” because, if awarded, the Court can double the amount that is owed to the employees.

For more information about the FLSA, minimum wage or overtime, contact us.  Additionally, for more information on the Apollo Industries case, see the DOL’s recent press release.

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What happens when a company classifies its employees as salaried, exempt from overtime but then deducts or docks from the employees’ pay for things like sickness, disability, or personal leave?  Can this deduction change an exempt employee to a non-exempt employee?  The short answer is “yes.”  The rule of thumb under the Fair Labor Standards Act (“FLSA”) is that the regulations do not permit an employer to dock pay from a salaried, exempt employee.  Doing so, can cause an entire class of employees to suddenly go from exempt to non-exempt and thus, entitled to overtime.  As always, however, there are exceptions to the rule.

To understand the discussion on docking an employee’s pay, you have to start with the basics of the FLSA.  To qualify for the administrative, executive and professional exemptions under the FLSA, the employer must pay the employees at least $455 per week on a salary or fee basis.   An employee is paid on a salary basis if:

  • The employer compensates the employee a predetermined amount each pay period on a weekly or less frequent basis, which makes up all or part of the employee’s compensation;
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Like many companies, Macy’s Department Stores use outside cleaning companies to clean the stores after hours. In Minnesota, a federal court granted the cleaning crew members’ request for class certification against one of these outside cleaning companies so that other crew members could join the failure to pay and overtime lawsuit. The cleaners allege that the cleaning company routinely failed to pay them minimum wage and overtime as well as failed to pay for time worked through meal breaks. One employee alleged that one of her paychecks resulted in pay of just over $4 per hour. The cleaners also alleged that the cleaning company allotted a set amount of time to clean each store and if the cleaners took more time than allotted they were not paid for the extra time.

While the federal court has yet ruled on whether the cleaning company is liable for unpaid wages and overtime, it did rule that the case could proceed as a collective action and other employees would be permitted to join the case. The court stated:

The FLSA authorizes employees to bring a collective action against employers for minimum wage and overtime violations. Courts have discretion, in “appropriate cases,” to facilitate the opt-in process by conditionally certifying a class and authorizing court-supervised notice to potential opt-in plaintiffs. To proceed with a collective action, plaintiffs must demonstrate that they are similarly situated to the proposed FLSA class. Determining whether plaintiffs are similarly situated to the proposed class requires a two-step inquiry. First, the court determines whether the class should be conditionally certified for notification and discovery purposes. The plaintiffs need only establish at that time a colorable basis for their claim that the putative class members were the victims of a single decision, policy, or plan. Determination of class status at the notice stage is granted liberally because the court has minimal evidence for analyzing the class.

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There have been a number of cases and settlements throughout the country over the last few years involving healthcare workers who are required to work through lunch breaks but whose employer automatically deducts time for lunch each day. Pursuant to the Fair Labor Standards Act, in order to deduct time from an employee’s time records for a lunch break, the break must be uninterrupted – meaning that the employee is not performing any work. As nurses and other employees with direct patient care responsibilities will tell you, uninterrupted lunch breaks are difficult if not impossible.

One fairly recent settlement involved a hospital in Wisconsin. The settlement totaled over $1,000,000 to compensate all non-exempt professional/technical employees employed by St. Elizabeth Hospital from February 10, 2012, until February 9, 2014, with direct patient care responsibilities whose scheduled hours included an automatic deduction for unpaid meal breaks and who worked in the following departments:

• East Region Nursing Float Pool

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Nowadays, many employers use an automatic 30-minute meal period deduction in its time keeping program that automatically deducts 30 minutes of time per shift. Sometimes, employees do not even realize that their employer is deducting 30 minutes from their time cards each day. However, what happens when an employee continues to work through these 30 minute meal breaks? While federal courts have ruled that automatic meal break time keeping programs do not per se violate the Fair Labor Standards Act (“FLSA”), the burden remains solely on the employer to maintain accurate records of its employees’ hours.

Federal courts have held that where an employer knows or has reason to believe that an employee is continuing to work through the meal break, the time must be considered working time. Where an employer knows or has reason to believe an employee is working through meal breaks, the employer cannot stand idly by and allow an employee to perform overtime work without proper compensation – even if the employee does not make a claim for the overtime compensation.

Employees should carefully review their time records to make sure the records accurately show the hours that they worked. If their employer is automatically deducting meal breaks from the time records and the employee is not actually taking a break, the employee could not only be entitled to lost wages and overtime pay but also liquidated damages (“double damages”) and attorneys’ fees and costs.

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The Tampa District Office of the Department of Labor Wage & Hour Division found that the restaurant, Hibachi Buffet, failed to properly pay its servers and kitchen workers under the Fair Labor Standards Act (“FLSA”). The investigators found that the restaurant violated the overtime, minimum wage, and record keeping requirements of the FLSA. The restaurant did not pay its kitchen employees overtime pay for the hours worked beyond 40 in a workweek and did not compensate its servers beyond tips, room and board.

The restaurant agreed to pay 12 employees over $48,000 in back wages plus an equal amount in liquidated damages for a total of over $97,000. Under the FLSA, employers can be required to not only pay back wages but also “liquidated damages” which are also call “double damages” because they double the damages entitled to employees.

The DOL stated that “[u]nderpaying and improperly paying workers cheats them out of their hard-earned income and puts those responsible employers, who play by the rules, at a competitive disadvantage. We strongly encourage workers who may be in similar situations, where their employer is not paying overtime after 40 hours of work in a workweek or paying the correct minimum wage pay, to contact us with the knowledge that the information they share is kept confidential under the maximum extent of the law.”

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The administrative exemption of the Fair Labor Standards Act (“FLSA”) is one of the most litigated areas of overtime law. Because the administrative exemption regulations can be confusing, it provides a prime opportunity for employers to violate the law. One of the elements of proving the administrative exemption is evidence that the employee exercised discretion and independent judgment with respect to matter of significance.

In order to establish the narrowly construed affirmative defense of the administrative exemption, employers must also show, with clear and convincing evidence, that the employee’s primary duty involved the performance of exempt work involving “the exercise of discretion and independent judgment with respect to matters of significance.” 29 C.F.R. § 541.200. Such work is defined as involv[ing] the comparison and evaluation of possible courses of conduct, and acting or making a decision after the various possibilities have been considered.” 29 C.F.R. § 541.202(b). Additionally, the following factors should be considered when determining whether an employee exercises the requisite discretion and independent judgment:

whether the employee has authority to formulate, affect, interpret, or implement management policies or operating practices; whether the employee carries out major assignments in conducting the operations of the business; whether the employee performs work that affects the business operations to a substantial degree, even if the employee’s assignments are related to operation of a particular segment of the business; whether the employee has authority to commit the employer in matters that have significant financial impact; whether the employee has authority to waive or deviate from established policies and procedures without prior approval; whether the employee has authority to negotiate and bind the company on significant matters; whether the employee provides consultation or expert advice to management; whether the employee is involved in planning long- or short-term business objectives; whether the employee investigates and resolves matters of significance on behalf of management; and whether the employee represents the company in handling complaints, arbitrating disputes or resolving grievances. 29 C.F.R. § 541.202(b).