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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:

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.

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

On July 6, 2015, the United States Department of Labor announced it proposed rule to update and increase the salary requirement for an employee to be classified as exempt from overtime. Currently, the executive, administrative and professional exemptions to the FLSA require that the employee make at least $23,660 a year to qualify for the exemption. However, the DOL stated that this would fall below the poverty line for a family of four. The DOL stated that as it stands, “a convenience store manager, fast food assistant manager, or some office workers may be expected to work 50 or 60 hours a week or more … and not receive a dime of overtime pay.” The proposed rule would increase the minimum salary from $23,660 per year to $50,440 per year. Thus, there is a significant need to increase this minimum salary requirement to protect hard-working Americans.

The DOL’s proposed rule change states:

The Fair Labor Standards Act (FLSA or Act) guarantees a minimum wage and overtime pay at a rate of not less than one and one- half times the employee’s regular rate for hours worked over 40 in a workweek. While these protections extend to most workers, the FLSA does provide a number of exemptions. The Department of Labor (Department) proposes to update and revise the regulations issued under the FLSA implementing the exemption from minimum wage and overtime pay for executive, administrative, professional, outside sales, and computer employees. This exemption is referred to as the FLSA’s “EAP” or “white collar” exemption.

If an employer fails to pay an employee overtime under the Fair Labor Standards Act (“FLSA”), the question turns to how to calculate damages. Non-exempt employees are entitled to time and one-half for all hours over forty in a workweek. Under the FLSA, the statute of limitations permits an employee recover two years’ worth of overtime plus liquidated damages (“double damages”) and attorneys’ fees and costs.

An employee, however is allowed to recover three years’ worth of overtime if the employee can prove by a preponderance of the evidence that the employer “willfully” violated the FLSA or show reckless disregard for the law. Reckless disregard can be shown by the employer’s failure to make adequate inquiry into their pay practices. In the 11th Circuit Court of Appeals, the question of willfulness and good faith presents a related inquiry, and “the judge and jury answer what is essentially the same question for two different purposes.” (citation omitted). First, the “willfulness or good faith question is answered … by the jury to determine the period of limitations….”

For an employer to avoid liquidated damages a/k/a “double damage,” the employer bears the burden of establishing both the subjective and objective components of that good faith defense against liquidated damages. “Subjective good faith means the employer has an honest intention to ascertain what the FLSA requires and to act in accordance with it.” “Objective good faith means the employer had reasonable grounds for believing its conduct comported with the FLSA.”

On February 2, 2015, a former employee of Golden Homes Services in Atlanta, Georgia filed a lawsuit alleging that Golden Homes violated the Fair Labor Standards (“FLSA”) by failing to pay time and one-half overtime to its Certified Nursing Assistants (CNA). The former CNA alleged that Golden Homes was a staffing company that placed CNAs in its client’s assisted living facilities and similar type facilities.

The former employee alleged that the CNAs saw a number of patients per day at these facilities and worked more than forty hours per week. The former employee alleged, however, that Golden Homes did not compensate the CNAs at a rate of time and one-half for all hours over forty and therefore, owed its CNAs unpaid overtime, liquidated damages, and attorneys’ fees and costs. After the filing of the overtime complaint, the case between the former CNA and Golden Homes settled.

Under the FLSA, hourly employees must be paid time and one-half for all hours over forty in a work week. If you were not paid overtime, you not only are entitled to back pay but also liquidated damages a/k/a double damages that double the amount of your back pay. Additionally, you are entitled to attorneys’ fees and costs. For more information, contact us.

One area of the Fair Labor Standards Act (“FLSA”) that can confuse employers and employees is the on-call rules. The question is whether the employee is actually working while they are on-call or so restricted from using their time for their own use. The general analysis looks to whether the conditions placed on the employee are restrictive or non-restrictive.

Restricted conditions restricts the employee from effectively using the time for personal use. For example, the FLSA regulations state that if the on-call nurse was burdened with calls from the employer such that the calls prevent free use of time, or the conditions impede the nurse from using the time effectively for personal use, then the on-call time could be considered hours worked and entitled to compensation. 29 C.F.R. § 785.17.

On the other hand, non-restricted conditions permit an employee to use time effectively for their own personal use while on-call. For example, an employee may be required to carry a cell phone and return to the employer’s premises within thirty minutes after being called, but the employee is free to do what he wants to do during that time, e.g. hang out with friends, run errands, sleep, etc. If the employee is able to use the on-call time effectively for their own purposes the on-call time is not considered work time. 29 C.F.R. § 785.17.

In April, 2015, Martin & Martin filed a lawsuit against a nursing staffing company alleging that the company did not properly pay its staffing coordinators. The employees allege that as staffing coordinators they were required to work on-call hours filling open shifts and ensuring appropriate coverage of clients. The Complaint alleges that the staffing coordinators worked at least forty hours per week at the office Monday through Friday and then were required to handle on-call shifts covering after hours during the week and all day and night during the weekends responding to calls regarding caregiver issues.

The Complaint alleges that the company did not include the on-call time in the calculation of hours worked by the employees violating the Fair Labor Standards Act (“FLSA”) for failing to meet the requirements for any of the exemptions from application of the overtime compensation requirements of the FLSA under 29 U.S.C. §§ 207 or 213. The staffing coordinators seek unpaid overtime, liquidated damages (“double damages”) and attorneys’ fees and costs.

For more information about this lawsuit, contact us.

Under the Fair Labor Standards Act (“FLSA”), to establish that an employee is subject to the administrative exemption, which is narrowly construed against the employer and in favor of the presumption that the employee is entitled to overtime, a defendant-employer must show that:

(1) the employee is compensated on a salary or fee basis of at least $455 per week;

(2) whose primary duty is “the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers;” and

One of the many beneficial aspects of the Fair Labor Standards Act (“FLSA”) is that in some cases an employee may sue not only his employer but also his boss on an individual basis. This is strikingly different than other employment laws.

Under the FLSA, an employee may recover unpaid overtime from multiple employers, as the statute “contemplates that there may be several simultaneous employers who are responsible for compliance with the FLSA.” Under the FLSA, the term “employer” is defined broadly to include “any person acting directly or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d). The Eleventh Circuit Court of Appeals has “accordingly held that the FLSA contemplates that a covered employee may file suit directly against an employer that fails to pay him the statutory wage, or may make a derivative claim against any person who (1) acts on behalf of that employer and (2) asserts control over conditions of the employee’s employment.”

“The overwhelming weight of authority is that a corporate officer with operational control of a corporation’s covered enterprise is an employer along with the corporation, jointly and severally liable under the FLSA for unpaid wages.” The test to determine whether an individual may be sued include whether the individual: (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records. However, no single factor is dispositive.

A federal court of appeals court affirmed a jury verdict for employees of Tyson Food meat-processing plant workers for failing to pay the employees for pre- and post-production line activities under the Fair Labor Standards Act (“FLSA”). A jury found in favor of the employees and awarded them over $5M. Tyson appealed and the Court of Appeals (“COA”) agreed with the jury’s verdict in favor of the workers.

In the case, the employees were current and former “gang time” employees and the COA found that Tyson paid the employees as follows:

To calculate the employees’ compensable working time, Tyson measures “gang time”–when the employees are at their working stations and the production line is moving. The employees claim Tyson failed to provide FLSA overtime compensation for donning (putting on) personal protective equipment (PPE) and clothing before production and again after lunch, and for doffing (taking off) PPE and clothing before lunch and again after production. The PPE and clothing worn by individual employees vary depending on their role in the process. Tyson classifies items of PPE and clothing as either “unique” or “non-unique” to the meat-processing industry…. The employees also seek compensation for transporting the items from lockers to the production floor.

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