Arguing the Professional Exemption

The Obama administration recently took a closer look at the Professional Exemption. Their scrutiny was followed by instructions to the Department of Labor to narrow the definition of the exemption. Changes are set to take effect in 2015, but Courts may begin utilizing the new definitions and strictures immediately if recent activity is any indication. 

Court cases that involve the proper classification of employees are generally the most contentious. This makes sense as the stakes are higher than cases involving potential repayment of back wages and/or penalties for overtime. They can also require complete reclassification of employees listed in the case with overtime required from that point forward. In proper classification cases, a ruling against the employer often means a complete change in the way the company runs their business.

Many employers have been cutting corners to save money on overtime. Some say it’s due to the Labor Code coming across as complex. But it’s more likely a combination of complexity allowing for loose interpretations/purposeful misinterpretations embraced during low cash flow points in a troubled economy. Employers feel they need to save the money and many are deciding to do whatever they can (legal or not) to save money on overtime costs.

A recent case involving day rate employees being classified under the labor code as professionals exempt from overtime pay seems to support the idea that the courts will consider changes to the Professional Exemption now rather than waiting until 2015. Workers in the recent case were working 12-hour shifts, sometimes 7 days a week leaving them totaling in excess of 84 hours some weeks. Their work was compensated by a day rate. Some weeks their total pay (if they worked only a couple days) was less than $455/week. Legal representation for the plaintiffs in the case argued that claiming an employee is a salaried professional, but paying them less than $455/week some weeks does not meet the requirements of the Professional Exemption’s first prong.

The case was concluded on March 27, 2014. The Federal Middle District of Pennsylvania court clerk recorded judgment for wage and hour violations in the case (3:14-cv-00042-RDM). Allegations accused the employer of failing to pay workers overtime for their hours that exceeded the full time 40. The court supported the claims. We can most likely expect to see more decisions leaning towards the new understanding of the Professional Exemption.

If you feel that you may be due past overtime or know someone who is in an untenable work environment, get in touch with the experts at Blumenthal, Nordrehaug & Bhowmik today.

Unpaid Overtime: What Type of Plaintiff Are You?

With the continued increase in unpaid overtime lawsuits in almost every industry, employees may find it useful to consider the various types of plaintiffs simply to get an idea of where their own workplace situation lies.

What Type of Plaintiff Are You?

1. Do you find yourself a slave to your handheld device? When you leave work, do you continue to answer questions, delve through documents and conduct brainstorming sessions? Do you often find yourself in arguments with your significant other because they simply want you to attend a family function, complete a household chore or actively involve yourself in a conversation from beginning to end without being interrupted by someone at work that needs you? If so, you could be a “worker with a handheld device” plaintiff. You go to work and you come home, but you never seem to be off the clock. You answer calls, check emails, and basically continue working into the night. Many would classify all this “after hour” work as unpaid overtime.

2. Does your job require a lot of in-office prep in order to go “on the clock?” Do you have to arrive early in order to complete a series of log ins, paper pushing, or mandatory meetings before you can actually “go to work?” If so, you might be an “off the clock work in the office” plaintiff. Many are asking the question (in court) whether or not they should be able to clock in when they get to work to prepare to work or if they are donating the time it takes to perform necessary functions prior to starting the job duties employers are willing to pay for.

3. Do you enjoy the use of a fancy title without the fancy job duties? Many employers have turned to the non-promotion promotion as a solution to overtime. “Promoting” employees without actually giving them managerial responsibilities is a game plan used by employers looking to keep labor costs down. Many managerial positions are exempt from overtime pay laws and requirements. If you found yourself impressed with an empty title at first, don’t feel bad, you aren’t the only one and you could be a “fancy title” plaintiff.

If you have more questions now that you understand the basics behind many of the employment law related suits you’ve been reading about in the news, get in touch with the attorneys at Blumenthal, Nordrehaug & Bhowmik today and get the right answers. 

When Should Employees Get Overtime Pay?

Federal law regulates overtime pay requirements. According to federal law, employees who work more than 40 hours in one week should receive one and a half times their normal pay rate for the “overtime” hours. As is often the case, there are exceptions to this law, but it’s important for employees to question their situation due to the fact that employers often misunderstand the rules or misapply them in specific circumstances – most often at the employee’s expense.

If you are an employee that works more than 40 hours and week without overtime pay, your employer could be in violation of the Fair Labor Standard Act. If an employer is in violation of this law, you could be entitled to the amount owed to you as well as additional funds to cover liquidated damages and attorney’s fees.

Define Your Employee Classification and Job Duties:

There are two categories of employees: exempt and nonexempt. The Fair Labor Standard Act (FLSA) doesn’t cover exempt employees. Federal law does not require employers to provide exempt employees with overtime pay. Exempt employees are often in managerial positions. They can receive pay on a salary basis or as an hourly wage. They have independence in their job duties and authority over their own work. Exempt employees are involved with creating/applying workplace policies and have some responsibility for making decisions within the company framework.

It’s important to consider exempt status because employers will often categorize employees as exempt inaccurately. For example, an employer could provide an employee with the title of Assistant Manager, but fail to provide the employee with any authority or responsibility for other employees. Another example is when employers categorize an employee as an independent contractor, but their day-to-day job duties more closely resemble those of a normal employee.

If you are an employee who does not receive overtime pay it’s important to define your status: exempt or non-exempt. This will determine whether or not your situation is governed by the FLSA. If you are misclassified as exempt, you can fight to get the compensation to which you are entitled by federal law.

Employers subject to the Fair Labor Standard Act aren’t permitted to exchange personal days or other extra benefits for overtime pay. Employers are also not allowed to have mandatory meetings that occur when employees are officially “off.” As an employee, you are entitled to the pay you have earned. When you put in extra hours, you are entitled to extra pay. If your employer doesn’t pay you overtime (to which you are legally entitled through the Fair Labor Standard Act), contacting an expert in unpaid overtime is the most appropriate step towards resolution.

Blumenthal, Nordrehaug & Bhowmik helps you enforce your overtime rights. If your employer is knowingly and willingly refusing to pay you earned overtime pay, you are entitled to the amount owed. Call today to discuss your employment situation and see how you can get paid past due overtime wages. 

PetSmart Pays $10 Million as Wage Class Action Settlement

According to documents filed in California federal court on January 31, 2014, PetSmart agreed to pay $10 million to settle claims that 16,000 animal groomers/workers (current and former) in more than 130 stores were underpaid.

The suit was originally filed in 2012 with allegations that PetSmart violated labor law. Plaintiffs claimed:

• PetSmart failed to compensate groomers for time spent doing non-grooming duties (i.e. stocking/cleaning).
• PetSmart stylists were paid 50% of the grooming fee. This failed to cover minimum wage requirements for time spent performing non-grooming duties.
• PetSmart failed to compensate hourly employees for helping customers during meal breaks (employees were required to punch out of time clocks at the front of the store while the break rooms were located at the back of the store).
• PetSmart broke California labor law mandating a meal period after 5 hours of work. Hourly employees were allowed 30-minute meal breaks if they worked 6-8 hours. 

The approval hearing for the PetSmart settlement has been set for March 7^th. Successful settlement would resolve all allegations made against PetSmart by all plaintiffs included in the suit: hourly employees and stylists, grooming trainees as well as grooming salon managers who were employed in a California PetSmart store between May 23, 2008 and the present. The class for terminated PetSmart employees ranges from May 23, 2009 to the present.

For more news on recent employment law cases, check back often for updates from Blumenthal, Nordrehaug & Bhowmik. 

Employee or Independent Contractor?

Another serious major issue emerging in several wage and hour class actions is whether employees have been misclassified as an independent contractor as opposed to an actual employee. While many employers will attempt to classify employees as independent contractors for tax liability purposes, these misclassifications also have many implications in the employee’s entitlement to overtime wages and many other protections under the FLSA or other relevent state labor codes.

In determining an employee’s status as an independent contractor, there are many important questions to consider. Most of these questions relate to how much control the employer has over the employee (or indendent contractor).

Who is buying the materials?

Who invested in the equipment?

Are the services different from that of the employer?

Does the service require a special skill?

Are the services performed under the supervision of the employer?

Does the (supposed) independent contractor have employees?

Do they have other clients?

How is payment being made?

There are many other quetions and factors which the court considers in trying to determine an employee’s status. However, many employers can find unusual tricks that will make the analysis more complicated for courts. For example, in Hilton v. Apple, the class actions lawyers at Blumenthal, Nordrehaug, and Bhowmik alleged that Apple engaged their employees in Yellow Dog contracts in order to classify them as independent contractors and avoid paying them normal and overtime wages. A yellow dog contract is when the emplyees agree not to be part of a labor union.

It would be wise to contact a California labor attorney if you are unsure as to whether you are an employee or an independent contractor. First start with considering some of the questions addressed above and then consult with an employment lawyer for further clarification. Most employment attorneys — especially ones handle claims dealing with overtime claims — will offer free consultations for these types of cases. Contact one and claim lost overtime wages before the statute of limitations bars you from recovering in the near future.