The Fair Labor Standards Act contains very specific
provisions for employees who work with computers. In order to be exempt
from the FLSA, computer employees must be paid at least $27.63 per hour
or they may be paid a salary of $455 per week. Additionally, exempt
computer employees must work in software design, systems analysis, or
similar areas. Frequently, employers do not fully understand these
requirements and assume that employees working with computers should not
be eligible for overtime pay. If you work in the IT or computer field,
do not meet the requirements above, and do not receive overtime pay,
please contact us.
Insurance Adjusters and Appraisers
Traditionally, many office workers have been classified
as exempt under the FLSA’s administrative exemption. However,
technological improvements have tended to reduce the need for many
office workers to exercise independent discretion and judgment, and have
made these jobs increasingly mechanical and repetitive. The compensation
practices of many “white-collar” industries have not kept pace with the
changing nature of these types of jobs, and many employees have not
received the overtime pay to which they are entitled.
An
example of this trend—and the legal reaction against it—can be found in
the insurance industry. Over the past several years, a number of class
actions have recovered overtime pay for insurance adjusters who were
wrongly classified as exempt employees. While their employers argue that
these workers fall under the administrative exemption to the FLSA,
several courts have held that many insurance adjusters are not given the
independence in their duties and decisions necessary to meet the
requirements of the exemption. Similar cases can be found throughout the
financial services and related industries. If you believe that your
employment situation is similar to those described here, please contact
us.
Call Centers
Frequently, call center employees are paid for a set
timeframe, such as 8:00 a.m. to 5:00 p.m., but they may be required to
be at their workstations before and/or after the shift without being
compensated for this extra time. This practice violates the law. If you
have experienced a situation such as this, please contact us to take
action.
Donning and Doffing
In jobs that require employees to wear uniforms or other
gear necessary to the job, employees can spend a significant amount of
time each day “donning and doffing” (i.e., putting on and taking off)
their gear. The Supreme Court has recently held that in most cases,
employees should be paid for this time. If you work in a job that
requires you to wear special gear and you are not paid for the time you
spend donning and doffing it, please contact us to take action.
Automatic Time Clock Systems
An increasing number of employers are using computerized
timekeeping systems to track their employees’ work hours. Many such
systems are set to automatically clock employees in and out at certain
times or to automatically record a lunch of a set duration. However,
many employees arrive at work early, stay late, or take short lunches.
Automatic time clock systems frequently do not record this extra work
time, and employees do not receive the wages they are owed. If your
employer’s timekeeping system does not give you credit for all the time
that you work, please contact us to take action.
Independent Contractors
Employers often improperly classify their employees as
“independent contractors” in order to avoid paying these employees
minimum wage or overtime compensation. The employer’s use of a Form 1099
does not automatically make an individual an independent contractor in
the sense relevant to overtime and minimum wage laws. Several important
factors may be considered in determining whether you have been
improperly classified as an independent contractor. These factors
include: (1) whether the person or entity to whom you are providing
services has control or the right to control your work or the manner in
which you perform you work; (2) the permanence of the working
relationship; (3) the degree of skill required to perform the work; and
(4) the degree to which your services are an integral part of the
principal’s business. If you believe that you are being improperly
classified as an independent contractor, please contact us to take
action.
Assistant Managers/Shift Supervisors
Many employees with job titles such as "assistant
manager" or "shift supervisor" believe they are not eligible to receive
overtime as they are supervising others. Recently, a number of overtime
cases have been filed on behalf of assistant managers whose primary duty
is not management. Assistant managers or shift supervisors who do not
regularly supervise two or more employees, do not have the authority to
hire or fire employees, or spend the majority of their time performing
the same duties as the employees they supervise may be eligible for
overtime pay. If this describes your employment situation, please
contact us to take action.
Field Service Technicians/Engineers
Many companies employ “field service” technicians or
engineers to provide direct field service performing installations,
testing, and providing customer service and technical support to
customers in the field. Industries that employ field service people
include the telecom, semiconductor, environmental, network-critical
power equipment, computer, and construction industries. Because the job
duties of field service technicians/engineers primarily consist of
manual labor and customer service, these employees are generally
eligible to earn overtime pay. If you are a field service technician or
engineer, primarily provide technical support to your employer’s
customers in the field, and you are not paid for overtime, please
contact us to take action.
School Bus Drivers
Many school bus drivers companies mistakenly treat their
drivers as exempt from the overtime provisions of the FLSA. These
companies believe that a law called the “Motors Carrier Act” exempts or
excludes them from the overtime provisions of the FLSA. In fact, the
Motor Carriers Act exempts bus drivers, but not school bus drivers. In
fact, employees who transport school children on a regular basis in
school buses are covered by the FLSA and must be paid overtime. If you
are a field service technician or engineer, primarily provide technical
support to your employer’s customers in the field, and you are not paid
for overtime, please contact us to take action.
Temporary Employees
Many employees of temporary staffing companies fail to
pay their employees all their earned overtime for time worked in excess
of 40 hours in individual work weeks. One common scheme is when an
employee works at company A for 30 hours in a week, and company B for 20
hours in the same work week. Often times, the temporary staffing company
will pay the employee in 2 checks, one for 30 hours and one 20 hours,
all at the employees regular hourly rate of pay. The FLSA requires
however, that the employee be paid 40 hours of straight-time pay and 10
hours of overtime wages. Temporary employees also are often not paid all
their earned and accrued vacation time at the time of their termination
from employment. For example, some temporary staffing companies maintain
policies which require employees to work a certain number of hours in a
calendar year and be employed in December of that same year in order to
receive vacation pay. Depending on the state in which you work, such a
vacation policy may be unlawful. These policies have been found to be
unlawful in Illinois and California.
Mortgage Originators
Mortgage originators (often called "loan officers"
and other titles) are routinely paid exclusively on commission or
commission plus draw basis. Mortgage sales staff, who work from call
centers are generally not exempt under any FLSA exemption.
Car Mechanics
Car mechanics are
frequently paid either a salary or an hourly rate. There is no overtime
exemption for auto mechanics outside of a dealership and so mechanics
must be paid time and one half for all hours over forty in a work week.
Some auto dealership mechanics may be exempt, however.
Health Aides
Health aides who
work in private homes may be exempt if they spend more than 20% of their
work time doing general household chores. However, home health aides
that work in "institutions" generally are not exempt from the time and
one half overtime requirement. This requirement is frequently violated.
Drivers of Vehicles
under 10,000 Lbs.
On August 10, 2005,
Congress changed the overtime law for drivers of vehicles with a Vehicle
Gross Weight Rating of 10,000 lbs. or less. Drivers of these vehicles
were generally exempt from the federal overtime law prior to August 2005
(if they carried goods across state lines, or if the goods originated
out of state), but now these drivers are not exempt and are covered by
the federal overtime law. This change in the law will have a very
significant impact for Route Delivery Drivers (for example, Newspaper
Route Drivers and sales managers who oversee drivers but also handle
routes) and repairpersons (those who carry parts that originated out of
state). This change in the law is one of the most positive developments
in overtime law in the last two decades. It has gone largely un-noticed
in the press and by employers, who may continue to believe that drivers
of these vehicles are exempt, simply because they are carrying goods
which originated out of state.
