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Indiana Breast Feeding Law
Posted by: Phil Gibbons
July 01, 2008
Topic: Employee Rights

Beginning July 1, 2008, a new Indiana law goes into effect that will protect mothers who wish to breastfeed in the workplace.  The law will affect businesses with 25 or more employees, as well as the state and political subdivisions of the state (government employers).

 The new law requires employers to provide a private location, other than a toilet stall, where an employee can pump breast milk in privacy.  In addition, the employer must either provide a refrigerator (or other cold storage space), or allow the employee to provide their own portable cold storage device, for keeping milk that has been pumped until the end of the employee’s work day.

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Have You Been Asked To Sign a General Release of Claims? What Your Employer Doesn't Want You To Know
Posted by: Phil Gibbons
June 03, 2008
Topic: Wage and Hour

With the downturn in the economy, more and more employers are resorting to layoffs and reductions in force.  Employees are contacting our law firm with questions about severance agreements and releases.  It has become the norm for employers to condition severance benefits on the execution of a release of all potential claims against the employer, including wage and hour claims.  Many employers (and their legal counsel) unwittingly put themselves in a dilemma when they seek this type of waiver because the waiver of FLSA claims must be approved by a court or the Department of Labor to be effective. In other words, even if you have signed a release, courts may find that you have not waived your right to seek damages for unlawful FLSA payment practices by your former employer.

If you find yourself the victim of a reduction in force or a layoff, contact an employment attorney to learn more about your legal rights.

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Hourly Worker Alert! Off-the-Clock Blackberry Use May Result In Unpaid Overtime.
Posted by: Phil Gibbons
April 29, 2008
Topic: Wage and Hour

Are you a non-exempt employee who is eligible for overtime pay?  Does your employer require you to check email or make business calls outside normal working hours?  Are you required to log-on to the company computer or receive work assignments before leaving your home each day?    If so, does your employer pay you for the time you spend performing these duties “off the clock?”  PDAs, cellular telephones, remote computer access and email may make employees more efficient and connected to the workplace, but these devices may also result in substantial liability for employers who fail or refuse to pay their non-exempt employees for the time they spend performing work activities away from the office.     

For nonexempt employees, whether salaried or hourly-paid, the general rule is that if the employer "suffers or permits" the employee to work, compensation is required, and if that results in the employee working more than 40 hours in a work week, overtime pay is necessary. Think about it, if you spend an average of 30 unpaid minutes per day checking emails, making calls, etc. outside your normal workday, this amounts to approximately 10 hours of unpaid wages per month.   Over the course of a year, this amounts to 120 hours (i.e. 3 weeks) of unpaid time.  The Fair Labor Standards Act permits an employee to recover unpaid wages, liquidated or double damages, plus attorney’s fees and costs from employers who fail to pay overtime.  Today, employers squeeze as much work as possible out of their employees.  Know your rights.  If you are not being paid for all of the work you do, contact an employment attorney to learn how to recover your unpaid wages.

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Attention Restaurant and Food Service Workers --- Is Your Employer Paying You Correctly?
Posted by: Phil Gibbons
April 23, 2008
Topic: Wage and Hour

Approximately 10.8 million U.S. workers are employed in the Restaurant/Food Service industry.  Many of these workers rely upon tips for a substantial portion of their wages.  According to the Department of Labor, this sector of the workforce is regularly subjected to “persistent and serious” violations of the law. Tipped employees should know their rights under the Fair Labor Standards Act (“FLSA”). 

 Who is a “tipped employee?”  A tipped employee is defined as an individual engaged in an occupation who customarily and regularly receives more than $30 per month in tips.  FLSA regulations identify several occupations that are traditionally considered tipped occupations: waiters/waitresses, bellhops, counter personnel who serve customers, busboys/busgirls, and service bartenders.  Although this list is not exclusive, the regulations also list several occupations that are not considered to be tipped occupations:  janitors, dishwashers, chefs, cooks, and laundry room attendants. 

How do employers benefit from employing tipped employees?  Under the FLSA, an employer may utilize a tip credit to pay tipped employees a direct wage less than minimum wage.  The tip credit is defined as a legally permitted portion of the statutory minimum wage that an employer is excused from paying because its tipped employees have earned a certain amount of money in tips.  This explains why many restaurant/food service workers are paid $2.13 per hour.

Common Wage and Hour Violations Arising From Tipped Employees.

Improper Tip Pooling. Tip pooling is the practice of gathering gratuities or a partial amount of those gratuities received from customers in a central pool for distribution to other employees.  Employers regularly violate the FLSA in this area.   Employers are not permitted to receive any portion of a tipped employee’s collected gratuities.  If your restaurant owner, supervisor, manager, or assistant manager is sharing in a portion of your tips, the tip pool may be illegal.  Similarly, tipped employees cannot be required to share their tips with non-tipped employees; i.e. kitchen staff.  If you are required to share a portion of your tips with non-tipped employees, the tip pool may be illegal.

What are the consequences of an illegal tip pool?   In the event a tip pool is found improper, the employer is no longer eligible for the tip credit and must pay the tipped employees the balance of the minimum wage for all hours worked while contributing to the tainted tip pool.  Under the federal minimum wage, an employer could be liable for $3.02 for each hour worked by each tipped employee.   The FLSA also provides for liquidated (or double) damages, plus attorney’s fees and costs.

Other Claims Involving Tipped Employees.

            1.         Miscalculation of Overtime Rate.  If your employer pays overtime based on one and one-half times your sub-minimum direct wage—($2.13 per hour x 1.5 = $3.20 per hour), you may be entitled to overtime damages.  Your overtime rate of pay must be based upon the full minimum wage rate.

            2.         Failure to Pay Minimum Wage.  An employee must receive at least minimum wage ($5.85) when the direct wage ($2.13 per hour) and tips are combined.  Accordingly, if the actual tips made by an employee are less than $3.72 per hour, the employer is required to make up the difference and ensure that the employee receives the federal minimum wage.  If you are not making minimum wage--$5.85—when you combine your hourly pay plus tips, you may be entitled to damages.

If you are a tipped employee and believe that you are not being paid properly, you should contact an employment attorney with experience in wage and hour issues to learn whether you have a claim.

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FMLA Amendments Regarding Military Leave Are Now Effective
Posted by: Phil Gibbons
February 01, 2008
Topic: Family Medical Leave Act

The new amendments to the FMLA for care of military members are effective immediately. Last week, the National Defense Authorization Act was signed into law.

The FMLA now permits a "spouse, son, daughter, parent, or next of kin" to take up to 26 workweeks of leave to care for a "member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness."

Its important to note that the caregiver protection provides more than double what is provided when an employee takes "traditional" FMLA leave.  Employees are entitled to only one 26-week leave period to care for a wounded servicemember during the employee’s employment. The leave may be taken on an intermittent or reduced-schedule basis, but all 26 weeks must be used during a single 12-month period. 

The Act also provides up to 12 weeks of leave for employees who have a family member called up to or engaged in active military duty.  In detail, the Act provides up to 12 weeks of FMLA leave for an employee with a spouse, son, daughter or parent who: (1) is on active duty in the Armed Forces in support of a contingency operation; or (2) has been notified of an impending call or order to active duty in the Armed Forces in support of a contingency operation. A "contingency operation" is an action or operation against an opposing military force.

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