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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

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A heavily litigated aspect of the overtime and minimum wage laws under the Fair Labor Standards Act (“FLSA”) is whether individuals are incorrectly classified as independent contractors instead of employees. If the individuals are, in fact, employees then they are entitled to minimum wage and overtime pay at a rate of time and one-half. The FLSA defines “employee” as “any individual employed by an employer,” and stipulates that an entity “employs” someone if it “suffers or permits [the individual] to work.” 29 U.S.C. § 203(e) (1).

To determine whether an individual is a protected employee or an unprotected independent contractor, courts look at the “economic reality” of the employment circumstances as a whole. This economic-reality inquiry turns on the following factors:

(1) the nature and degree of the alleged employer’s control as to the manner in which the work is to be performed;

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On February 23, 2015, the firm Martin & Martin filed a collective/class action against Athens, Georgia based company Adams Tile & Terrazzo, Inc. and its owners Reuben Adams and Scott Adams. The Complaint alleges that the company’s floor installers were required to work more than forty hours per week and were not paid at a rate of one and one-half times their regular rate. The Complaint states that the company would assign a group of workers to a particular project and the workers traveled to the customer’s location and installed the flooring. Jobs typically ranged from between five to seven days. The Complaint alleges that the company compensated the floor installers on an hourly basis and required them to work more than forty hours per week but did not pay the floor installers time and one-half for all hours over forty.

The employees seek to recover unpaid wages, liquidated damages (“double damages”), and attorneys’ fees and costs. If you worked for Adams Tile and were not paid for your overtime work, contact us immediately. The statute of limitations continues to run until you join the case.

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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.

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The Fair Labor Standards Act (“FLSA”) mandates that companies compensate their non-exempt employees at an overtime rate of one and one-half times their “regular rate.” Section 207(e) of the FLSA requires companies to include “all remuneration for employment” in calculating the employee’s overtime rate. The calculation of an employee’s “regular rate” can be simple for employees who work at a straight hourly rate without any additional compensation. However, what happens when employers also compensate their employees with a per diem? Is the employee permitted to use the per diem amount to raise his regular rate and thus raise his overtime rate?

The Department of Labor (“DOL”) says that there are situations in which an employee is permitted to include his per diem payments in calculating his overtime rate. The DOL regulations state that employers may be required to include the per diem into the overtime calculation when it compensates employees a per diem that is tied to the number of hours worked by the employee or for expenses on a flat rate per day/week basis regardless of whether the worker incurred the expenses versus a per diem that reasonably approximates an employee’s expenses, e.g. a per diem that specifically covers an airline ticket or lodging.

How would a per diem affect an employee’s overtime rate? An example would be if an employee’s hourly rate is $20 per hour and he receives no hourly or flat rate per diem, his overtime rate is $30 (time and one-half of the $20 regular hourly rate). Therefore, if the employee works 60 hours in a given workweek, he is entitled to a total of $1,400 (60 hours at $20 and 20 hours at $10 overtime premium). However, if the same employee works 60 hours and also receives a weekly flat rate per diem of $200, his regular rate jumps from $20 per hour to $23 per hour. While this may not seem significant, it can be when it is owed for a period of weeks, months, or years.

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Our law firm has filed an overtime lawsuit against Spectrum Financial Services, LLC pursuant to the Federal Labors Standard Act (“FLSA”). The federal lawsuit alleges that Spectrum Financial, a national staffing company, hired individuals across the country to work for its client, Accenture, as contract administrators. The Complaint alleges that Spectrum paid these individuals an hourly rate but illegally failed to pay them time and a half for overtime hours (all hours over forty in a given work week). The Complaint also alleges that Spectrum classified some of its Accenture contract administrators as employees and illegally classified some of its Accenture contract administrators as independent contractors.

The Complaint was filed as a “class or collective action” on behalf of all Accenture contract administrators. This means that all other individuals who worked as Accenture contract administrators within the last 3 years may join the case — including those that Spectrum improperly classified as independent contractors.

The lawsuit seeks not only recovery of the unpaid overtime but also liquidated damages and attorneys’ fees and costs. Liquidated damages are known as “double damages” and permit successful individuals to double their unpaid overtime compensation.

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Many times companies automatically classify its “managers,” “supervisors,” or “bosses” as exempt from overtime under the Executive Exemption when in reality the employees are actually entitled to overtime. In order to determine whether an employee is entitled to overtime, you must look at the employee’s job duties – not their job title.

To qualify under the Executive Exemption, an employee must meet the following tests:

1. The employee must be compensated on a salary basis at a rate of not less than $455 per week;

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On September 4, 2014, the Oakland Raiders Cheerleaders (“Raiderettes”) settled their wage lawsuit against the Oakland Raiders for $1.25 Million in back wages. The lawsuit was filed by two of their cheerleaders in January asserting that the football team underpaid them. One of the cheerleaders estimated her hourly rate over the course of the season at just about $5 per hour. Additionally, the cheerleaders were fined for violating team rules. The settlement will provide back pay for any Raiderette who cheered for the NFL team as far back as 2010 and awards each cheerleader $6,400 for each season they cheered between 2010-2013.

Other NFL cheerleader lawsuits are pending in Cincinnati, Buffalo, Tampa Bay, and New York Jets. For more information about cheerleader lawsuits or pay, feel free to contact us to determine whether you are entitled to owed compensation.

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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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Last month, a Court of Appeals ruled that delivery drivers were employees not independent contractors and therefore, the drivers were entitled to overtime. The case involved a Georgia company called Affinity Logistics Corporation which contracted with Sears to provide home delivery services for various home furnishing retailers. The drivers were responsible for loading furniture and appliance deliveries, unloading deliveries, and installing the deliveries.

To determine whether the drivers were independent contractors or employees, the Court of Appeals stated that “the right to control work details is the most important or most significant consideration.”

The Court of Appeals then cited the ways that Affinity controlled the drivers’ work details:

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