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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

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

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

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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Don't Let Your Employer Underpay You -- Be Informed About Wage and Hour Laws
Posted by: Phil Gibbons
December 10, 2007

A recent statistic from the Department of Labor found that more than 70% of employers are out of compliance with wage and hour laws.  What does this mean for you?  It could mean a bigger paycheck for you and your coworkers.  Throughout the country, employees are challenging their employer's illegal pay practices and winning settlement and verdicts that force employers to pay them correctly. 

Over the next few weeks, I will attempt to summarize some of the areas where employers are getting caught underpaying their employees.  Most of these claims fall under the Fair Labor Standards Act, the federal law that requires employers to pay minimum wage and overtime.  If you believe unlawful pay practices are occurring at your job, contact an employment law attorney to see whether you have a claim.  Under the law, you may be entitled to three years of back pay, liquidated damages (double the amount you were underpaid), plus attorney's fees and interest.  Most employment attorneys (including myself) will consider taking overtime and other wage claims on a contingency basis; i.e. no fee unless you recover.

Traditionally, the majority of overtime claims have focused on the misclassification of employees. Keep in mind, just because you are paid a "salary" or called a "manager" does not necessarily mean you do do not qualify for overtime pay.  Only certain types of salaried employees are "exempt" from overtime.  

Another violation that employers frequently overlook is work "off the clock."  Some employees are required to perform duties before or after work, without pay.  This includes pre- or post-shift meetings, time spent putting on or taking off uniforms or gear necessary for your job (donning and doffing), booting-up computers, or even checking and responding to emails from home.  Other employers deduct time from employees' paychecks for breaks and lunch without regard for whether the employees work through those time periods.  Finally, some employers use computerized time-keeping systems that automatically clock employees in and out regardless of whether employees arrive early, stay late or take shortened lunches.  With few exceptions, if you are performing work for your employer, your employer should be tracking, crediting and paying you for all the time that you work.   

Some employers seek to avoid paying overtime by labeling their employees as "independent contractors."  Issuing a 1099 form does not automatically make someone an independent contractor.  

Finally, other employers seek to avoid paying overtime by awarding "compensatory" or "comp" time in lieu of paying overtime.  In general, non-exempt employees working for private employers are eligible for overtime pay during the weeks in which they work overtime. Private employers cannot give comp time to non-exempt employees in lieu of overtime pay and require those employees to use comp time at a later date.

These are just a few of the common ways that employers fail to comply with wage and hour laws.  If any of these describe your employment situation, take action and contact an attorney.

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IRS Sets Mileage Rate For 2008 at 50.5 Cents per Mile
Posted by: Phil Gibbons
December 07, 2007

Employees who rely on mileage reimbursement for the business use of their vehicles will see a little more money in their 2008 reimbursement checks.  The IRS recently announced that beginning January, 1, 2008, the standard business mileage rate will be 50.5 cents per mile.  This rate is 2 cents higher than it was in 2007.  Given the price of gasoline, every little bit helps.

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