Atlanta Overtime Lawyers Blog

Individual Liability Under the FLSA a/k/a “Can I Sue my Employer and my Boss Individually?”

Published on: July 18, 2015 | by Martin & Martin, LLP

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.

Are Per Diem Payments Included In The Calculation Of An Employee’s Hourly Rate For Overtime Purposes?

Published on: February 25, 2015 | by Martin & Martin, LLP

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.

Class Overtime Lawsuit Filed On Behalf Spectrum Financial’s Accenture Contract Administrators

Published on: January 12, 2015 | by Martin & Martin, LLP

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.

Job Titles Like “Manager,” “Supervisor,” or “Boss” Do Not Mean Automatic Exemption From Overtime

Published on: September 15, 2014 | by Martin & Martin, LLP

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;

NFL Oakland Raiders Cheerleaders Settle Wage Claim Lawsuit For $1.25 Million

Published on: September 15, 2014 | by Martin & Martin, LLP

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.

Court of Appeals Affirms $5M Verdict Against Tyson Food Employees

Published on: September 13, 2014 | by Martin & Martin, LLP

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.

Court Of Appeals Finds Delivery Drivers Are Employees Not Independent Contractors

Published on: July 20, 2014 | by Martin & Martin, LLP

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:

Can Restaurants Require Servers And Bartenders To Pay For Customer Walk-Outs?

Published on: July 18, 2014 | by Martin & Martin, LLP

The Fair Labor Standards Act (“FLSA”) permits restaurants and other employers of tipped employees to receive a “tip credit” when compensating their tipped employees. The FLSA permits the employer to pay its tipped employees $2.13 per hour plus tips as long as those tips cause the employee to make at least minimum wage per hour.

Under the FLSA, “the employer is required to satisfy the following two statutory prerequisites in order to utilize the ‘tip credit’ allowance: (1) the employer must inform the employee of the provisions in Section 203(m) of the FLSA; and (2) all tips received by an employee must be retained by the employee. If the employer fails to meet either of these requirements, it is not eligible to claim the tip credit, and in such a case, the employer must pay each employee the full minimum wage of $7.25 an hour that is required under Section 206.”

The FLSA also permits restaurants and other employers of tipped employees to require its tipped employees to participate in a valid tip pool. A valid tip pool is where the employer gathers a certain amount of tips from its tipped employees and then distributes the tips to among other employees who “customarily and regularly receive tips.” This permits employees like servers, waiters, bartenders, food runners, etc. to receive tips from the tip pool. It does not permit the restaurant or employer to keep part of the tips nor does it permit management, kitchen staff, etc. to receive tips from the tip pool

Court of Appeals Holds Police Officers Are Entitled Overtime Where Their Salary Minus Annunities / Pension Payments Falls Below $455 Per Week

Published on: July 8, 2014 | by Martin & Martin, LLP

Last month, a United States Court of Appeals ruled that police officers whose salaries minus annunities fell below $455 per week were entitled overtime under the federal wage statute called the Fair Labor Standards Act (“FLSA”). Typically, the first question when determining whether salaried employees are entitled to overtime is whether their job duties are exempt typically under the executive, administrative or professional capacity. In this case, the police officers were not arguing about their job duties. Instead, they were arguing a different provision of the FLSA.

For salaried employees, in order for an employer to legally not pay overtime, the employer must pay the employees at least $455 per week. The District of Columbia was compensating the police officers less than $455 per week but the police officers were receiving annunities / pension payments which together with their salary equaled move than $455 per week. The police officers argued that the pension payments could not be counted towards the calculation of the $455 requirement and the Court of Appeals agreed. Thus the Court of Appeals held that because the employer failed the $455 per week requirement, the police officers were entitled to overtime for all overtime hours.

The Court of Appeals held that the employer:

What Type Of Jobs Are Exempt From Overtime Under FLSA’s Computer Employee Exemption?

Published on: July 1, 2014 | by Martin & Martin, LLP

Generally, employees are entitled to overtime pay for all hours over 40 in a given work week. However, the Fair Labor Standards Act (“FLSA”) allows certain employees to be exempt from overtime pay including an exemption for some computer professionals. The exemption, however, only applies to computer systems analysts, computer programmers, software engineers, and other similar workers who meet the job duties test and who are paid at least $455 per week in salary or at least $27.63 per hour for hourly employees. Unfortunately, many employers incorrectly classify employees who work with computers as exempt when, in fact, their job duties do not place them in the exemption.

To qualify for the computer employee exemption, the Department of Labor states that the following tests must be met:

1. The employee must be paid either at least $455 per week in salary or at least $27.63 per hour;