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Untitled-design-3-232x300“When employers misclassify employees as independent contractors and fail to pay workers their hard-earned wages, the Department of Labor will hold them legally accountable.”  This was the strong statement by the DOL when speaking about a medical staffing agency that violated the federal law, the Fair Labor Standards Act (FLSA), when it illegally misclassified aides and nurses as independent contractors.  The nurses included licensed practical nurses and registered nurses.  In the case, Medical Staffing of America doing business as Steadfast Medical Staffing, was found to have illegally classified its workers as independent contractors rather than employees.  As independent contractors, it paid the nurses and nurses’ aides straight-time wages rather than time and one-half wages when they worked over forty (40) hours in a workweek.

The healthcare employment agency industry routinely fails to properly classify its workers as employees.  Companies purposefully misclassify health care workers as independent contractors to save on wages, health insurance, taxes, etc. all at the expense of these vital essential workers.  In this case, the DOL also found that the company failed to maintain accurate records of the hours the nurses and aids worked in violation of federal law.

If you work in the health care industry and are classified as an independent contractor, you may very well be entitled to back wages and liquidated damages (double damages).  If successful, the Court will also order the company to pay our attorney’s fees and costs.  Martin & Martin routinely handles misclassification issues in the health care industry and we are happy to give you a free consultation to determine if you are misclassified and owed back wages and liquidated damages.  We handle our cases on contingency and only recover our attorney’s fees if we are successful.

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Untitled-design-4-232x300A California silk-screening company agreed to pay over $100,000 in unpaid overtime wages and an equal amount in liquidated damages to workers.  “Celebrities, retailers and manufacturers profit from T-shirts sold for $40 or more, while the low-wage workers who produce the merchandise work overtime to meet consumer demand and become victims of wage theft” said the DOL.  In this case, the company provided official merchandise for artists including Britney Spears, Lady Gaga, and Ariana Grande with shipments set for sale at retailers including Aeropostale, Footlocker, Kohl’s, Target, and Urban Outfitters.  The company failed to pay its workers time and one-half for overtime hours — all hours over forty (40) in a workweek in violation of the Fair Labor Standards Act (FLSA).

Additionally, the DOL investigated manufactures of “hot goods” which are products produced by workers whose legal rights have been violated.  The DOL said “[a]ll parties, from the entertainers to the distributers and wholesalers, should ensure their profits aren’t supported by workers in sweatshops, many of whom are immigrant women supporting families.”

If you are a worker who is not paid time and one-half for all overtime hours, Martin & Martin will be happy to speak with you to determine whether you are entitled to unpaid overtime and liquidated damages (double damages).  An employer may not retaliate against a worker seeking to protect their right to overtime pay.

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“Restaurant industry employers must know and comply with federal requirements to claim the tip credit,” says the Department of Labor (DOL).  The DOL recently found a restaurant in violation of the federal tip pool regulations that protect tipped employees’ earnings.  In the case, the restaurant required the tipped employees to share their tips illegally which invalidated the restaurant’s claim to a tip credit.

Untitled-design-5-232x300Restaurants are permitted to claim a tip credit for its tipped employees.  This means that a restaurant may pay a tipped employee $2.13 per hour plus tips.  However, there is a federal regulation on how the tips are distributed to other restaurant employees.  If a restaurant requires a tipped employee to share their tips with non-tipped employees like back of house employees or management employees, it invalidates the tip pool and tip credit.  This means the restaurant owes the employee minimum wage (minus the $2.13 already paid) and overtime pay.

Unfortunately, illegal tip sharing, invalid tip pools, etc. are very common in the restaurant industry.  Restaurants illegally use the money to pay other workers’ wages.  The DOL noted that the restaurant industry struggles to find workers to fill jobs.  However, it needs to recognize that it must follow the law with respect to tipped employees and protect their wages from illegal wage theft through forcing them to share their tips with non-tipped workers.

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Untitled-design-2-232x300One of the biggest aspects of the Fair Labor Standards Act (FLSA) that employers continue to violate is misclassifying workers as independent contractors rather than employees.  Employers receive massive benefits by misclassifying workers as independent contractors, including not having to offer health insurance or pay minimum or overtime wages.  However, the determination of whether a worker is an employee or an independent contractor is not up to the whim of the employer.  While that determination, at times, is complex.  Most of the time, it is as simple as whether the worker regularly works for the company and is bound by the company’s rules and policies.  If so, they are employees — not independent contractors.  And, as employee’s they have rights under the FLSA, including the right to minimum wage and overtime for all hours over forty (40) hours in a workweek.

One example of types of companies who routinely misclassify workers is the home health care industry.  On March 14, 2022, the Department of Labor (DOL) announced a consent judgment against a home health care agency when it misclassified some of its home health care workers as independent contractors and paid the workers straight time for all hours of work meaning the workers did not receive time and one-half for overtime hours.  The DOL also found that the agency did not include on-call earnings in the computation of overtime rates of pay for the workers it did pay overtime meaning the agency was paying a lower rate of overtime.

The DOL noted the significant need for essential home health care workers during the pandemic and said that “[h]ome care workers continue to deliver critical services on the pandemic’s frontlines. These workers provide people with vital assistance and help them meet basic daily needs. Without these services, many would not be able to live at home.”

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On January 13, 2022, Martin & Martin, filed a federal lawsuit against Onyx Gentlemen’s Club in Atlanta on behalf of several strippers to recover owed wages and fees.  Onyx reopened in February, 2021 and classified its dancers as independent contractors as opposed to employees.  As independent contractors, Onyx did not pay the dancers any wages whatsoever.  Instead, all of the money received by the dancers were from tips from customers.  However, this was after the dancers paid a bar/shift fee, tip outs, house mom fees, etc.

Over the course of the last decade, federal courts around the country have found that dancers at strip clubs are employees — not independent contractors.  And, they have held that as employees, the dancers are entitled to $7.25 per hour for all hours worked and time and one-half for all overtime hours.  The determination of whether an individual is an independent contractor or employee is made on a factual case-by-case basis.  However, some specific items that courts look at are: does the company require the workers to follow any work rules?  Does the company schedule the worker?  Does the company cover the expenses of the club, stage, payment to DJs, security, etc.?

In our recently filed federal lawsuit, on behalf of our clients, we seek to recover $7.25 per hour for all hours work plus liquidated damages (aka double damages) and recovery of all fees paid to the club.  We also seek for Onyx to pay our attorney’s fees and expenses.  If you are or were a dancer at a club and not paid any wages, contact Martin & Martin to fight for your rights.

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Companies are requiring employees to be vaccinated with the stated purpose of wanting to protect other employees, customers and visitors. Employees are being made to choose between getting vaccinated or possibly losing their jobs.

The Equal Employment Opportunity Commission (EEOC) has stepped in and identified two possible legal reasons an employee can claim in order to successfully challenge the mandate to be vaccinated. These are because of a disability (including pregnancy) or a sincerely held religious belief, practice, or observance. In these instances, the employee needs to request a reasonable accommodation which the employer should approve unless they successfully contend that to provide such a requested accommodation would work an undue hardship on the employer.  For more information on the EEOC’s guidance: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

The following examples of possible reasonable accommodations for an unvaccinated employee entering the workplace include wearing a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or finally, accept a reassignment.

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The Fair Labor Standards Act requires that both private and federal employers in the United States pay hourly (non-exempt) workers overtime at a minimum of 1.5x’s the normal hourly rate for any hours past forty hours in a workweek.

Now that you know what consists of a workweek and how you accrue overtime, you may be ready to pick up some extra hours to pay for some extras during the holiday season. Hold that thought. There are types of workers who are exempted from the overtime requirement. Those workers are generally salaried and make at least $684 a week (as of September 24, 2019). Those people are:

  • Administrative Employees:
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Now that we’ve established the general mechanics of how you accrue overtime, you might have gone back to look at your previous paystubs and noticed that you haven’t been paid the overtime that you were due as an hourly worker. The Fair Labor Standards Act and subsequent legal precedent accounted for such circumstances where employers withhold wages that hourly employees rightfully earned, and you can’t be fired for taking the steps to remedy your situation. Your options include:

  • Talk to your employer: This may seem like an obvious answer, but the first thing you should do if you think overtime wages have been withheld from you is to talk to your employer to make sure it wasn’t a mistake that they’d be inclined to resolve without outside intervention.
  • File a Complaint with an Administrative Agency: So talking to your employer didn’t work out. The next step is to file a complaint with some administrative agency (Ie. The Department of Labor or its equivalent in your State). Most agencies require a written complaint, after which they’ll start an investigation to figure out if overtime rules were violated and seek a remedy on the behalf of both the employee and the employer. Generally, you’ll receive back pay for any withheld wages, however….
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Photo by Erwan Hesry on Unsplash

With the holidays around the corner, many hourly workers are thinking about picking up extra shifts to supplement their normal income to pay for the festivities of the holiday season. Before you do that, especially if you’re a part-time worker, here’s how those hours in a workweek work.

The Fair Labor Standards Act requires that both private and federal employers in the United States pay hourly workers overtime at a minimum of 1.5x’s the normal hourly rate for any hours worked past forty in a workweek. While that workweek does have to have seven days, it does not have to match up to the standard Calendar week. For purposes of knowing if you, as an hourly worker, are supposed to receive overtime, it is important to know from what days your job’s workweek runs.

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The Fair Labor Standards Act (FLSA) regulates the labor practices of both private and federal employers in the United States. It was enacted to ensure that U.S. employers kept a fair and safe work environment for employees.

Included in this act are the bare minimum requirements for how employers must pay their employees. Those requirements include overtime pay for employees who have worked more than forty hours in a workweek.

The FLSA requires that hourly workers be paid overtime of, at minimum, 1.5x’s the normal hourly rate of their job. That means that even if you’re a minimum-wage worker ($7.25 per hour at the time of this writing), you’re entitled to at least 1.5x’s that rate ($10.875) for every hour that you work over forty hours.

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