Overtime Law & Minimum Wage Violations
Typically, if you are a non-exempt employee you must be paid one and a half times your normal hourly rate for any hours worked in excess of 40 during your work week. If you are not paid overtime, and you are a non-exempt employee, you may have a claim against your employer. Just because you are paid a salary or receive a commission, that does not mean that you are necessarily an exempt employee.
Recent Case Law Updates:
Gifford v. Target Corp., No. 10-1194 ADM/RLE, 2010 WL 2771896 (D. Minn. July 13, 2010) (granting defendant’s motion to disqualify counsel and denying defendant’s motion to dismiss).
Plaintiffs, former Executive Team Leaders for Target, sought legal advice from Halunen & Associates in regards to potential employment discrimination and retaliation claims. In the course of investigating plaintiffs’ claims, Halunen determined that plaintiffs may also have an FLSA misclassification claim against Target. Prior to the plaintiffs formally retaining the Halunen firm, the firm was contacted by Jane Doe, a senior manager at Target. Doe sought legal advice in negotiating her severance package from Target. Doe believed she was being fired because she had reported to her managers that she believed Target was violating its legal obligations under Title VII. As part of the negotiation of her severance package, Doe produced several emails and documents for the Halunen firm.
After Doe’s severance package with Target was negotiated, the Halunen firm filed the present FLSA case against Target. Eight days later, Target moved to disqualify counsel based on their prior relationship with Doe, a senior manager. The court granted Target’s motion, finding that there was a strong likelihood that the firm’s repeated contacts with Doe intruded on defendant’s right to confidentiality and privilege. The court found that the circumstantial evidence in the case gave the suggestion of impropriety, and found that its doubts about the counsel must be resolved in favor of disqualification. The court did find, however, that dismissal of the case was not warranted, as there was no evidence that any of the tainting information was obtained by unethical means.
Kanaztzer v. Dolgencorp, Inc., No. 4:09CV74 CDP, 2010 WL 2720788 (E.D. Mo. July 8, 2010) (denying defendant’s motion for summary judgment).
Plaintiff, manager of a Dollar General store, filed suit against her employer under the FLSA, alleging that she was misclassified as exempt from the FLSA under the executive exemption. Plaintiff had some managerial authority—she interviewed and recommended job candidates, created employee’s schedules and kept in e-mail contact with the district manager. Several of her duties were decidedly non-managerial, however—plaintiff estimates she spent up to 90% of her time on tending the cash register, unloading merchandise, cleaning the store or tending the sales floor. Further, plaintiff had no authority to discipline employees and there was significant oversight from regional and district managers, including what to sell, where to place products within the store, the height of the shelves, when to mark down products, etc. The court found that there were disputes of fact as to whether Kanatzer was exempt from the FLSA, and summary judgment was not appropriate.
Lewallen v. Scott County, Tenn., No. 3:08-cv-520, 2010 WL 2757145 (E.D. Tenn. July 13, 2010) (entering judgment in favor of plaintiff in the amount of $43,440).
Plaintiff, a former K-9 officer in the county sheriff’s department, filed suit against the county under the FLSA, alleging that he was not compensated for duties he performed off-the-clock, including caring for and training a narcotics dog. Plaintiff estimated that he spent an hour and a half each day performing these activities. The court found that Scott Country required plaintiff to care and train the dog, the care and training was primarily for the benefit of the County, and the off-duty work was an integral and indispensible part of plaintiff’s activities. The court awarded $21,720 for Plaintiff’s overtime wages. Further, the court awarded plaintiff $21,720 in liquidated damages, as it found that the County ignored plaintiff’s reports that its practices violated the FLSA.
Meyers v. Pioneer Exploration LLC, No. 4:09-2256, 2010 WL 2710676 (S.D. Tex. July 6, 2010) (granting plaintiff’s motion for conditional certification and notice to potential class members).
Plaintiff, a truck driver for defendant, filed suit, alleging that defendant failed to pay him overtime wages. Defendant had a policy under which some of the time drivers spent traveling was excluded from employees’ weekly hours of work. Further, plaintiff alleged that defendant failed to keep records differentiating compensable travel time from noncompensable travel time, and that defendants deducted thirty minutes each day from plaintiff’s hours, whether or not plaintiff actually took a lunch break. Defendants argued against conditional class certification based on their earlier DOL-supervised settlements with 21 affected employees. Because the plaintiffs produced four consents and five affidavits of individuals wishing to join the collective action, the court found that there was likely a large enough class wishing to opt-in to the lawsuit.
Pedigo v. Austin Rumba, Inc., No. A-08-CA-803-JRD, 2010 WL 2730462 (W.D. Tex. June 17, 2010) (granting in part and denying in part plaintiffs’ motion for partial summary judgment).
Plaintiffs, a group of waiters, waitresses and bartenders, filed suit against defendant under the FLSA, alleging violations of the overtime and minimum wage provisions. Plaintiffs moved for summary judgment on the claims that defendants (1) failed to pay appropriate overtime wages to servers, (2) improperly deducted fees from servers’ wages to pay for uniforms and (3) failed to pay required minimum wages.
Defendants conceded both that they had failed to properly pay servers overtime wages and that they impermissibly deducted the cost of uniforms from servers’ wages, but argued that they should not have to pay damages, as it had already paid the backwages and deductions into a trust with the DOL. The court found that since plaintiffs had not accepted such payment, however, they had not waived their claims. Accordingly, the court granted summary judgment to the plaintiffs on these two claims.
Under their third claim, plaintiffs claim that defendant was not eligible to utilize the FLSA’s “tip credit” allowance in calculating minimum wage. In order to be eligible for the tip credit allowance, employer must inform the employee of the relevant provisions, and all tips received by an employee must be retained by the employee (except that tip-pooling is permitted among employees who customarily and regularly receive tips). The court found that plaintiffs were entitled to summary judgment on the first prong, as there was nothing in the employee manual or at the restaurant informing employees of the tip credit allowance, and defendant’s owner and manager both testified that they never discussed the tip credit allowance with employees. In regards to the second prong, the court found that defendant impermissibly pooled tips with dishwashers and cooks—positions that are not customarily and regularly tipped. Finally, the court denied summary judgment in regards to damages, and referred the parties to a mediator.
Robinson v. Zions Securities Corp., No. 2:09-CV-122-TC, 2010 WL 2766967 (D. Utah July 12, 2010) (granting in part and denying in part defendant’s motion for summary judgment).
Plaintiff, a former mall security guard for defendant, alleges age and disability discrimination, as well as retaliation in violation of the FLSA based on his cooperation with a DOL investigation. Plaintiff suffers from bilateral neuropathy, which limits his ability to run. In 2008, the DOL instigated an investigation of defendant’s policy of requiring security guards to work through lunch. Plaintiff served as a witness in this investigation, which resulted in defendant paying backwages to its security guards, including plaintiff. Shortly after the DOL investigation, the mall at which plaintiff was stationed closed, and plaintiff was reassigned to a different post. After being reassigned, plaintiff’s new supervisor noticed that plaintiff’s ability to walk had deteriorated. Defendant then instituted a policy that all guards be able to run 1.5 miles in 15 minutes, and be able to climb 10 flights of stairs in 10 minutes. Plaintiff was the only security guard asked to meet this new requirement. Because he was not able to meet this requirement, he was given the option of taking a lower paying part-time driver position, collecting employment or retiring. Plaintiff worked in the part-time position for 10 months, then retired. Defendants claim they did not know that plaintiff participated in the DOL investigation.
The court found that plaintiff met his light burden of establishing a prima facie case of retaliation, and thus, could survive summary judgment on the retaliation claim. The court also found there were triable issues of fact as to his disability discrimination claim—namely, whether plaintiff’s supervisors regarded him as disabled and whether plaintiff was considered “qualified” for the job duties. Finding that plaintiff had not established a prima facie case of age discrimination, however, the court found that defendant was entitled to summary judgment on the age discrimination claim.
Solis v. Time Warner Cable San Antonio, L.P., No. 10-CA-0231 XR, 2010 WL 2756800 (W.D. Tex. July 13, 2010) (denying defendant’s motion to dismiss).
Plaintiff, the Secretary of the DOL, brought this action on behalf of employees of defendant, alleging defendant violated overtime and minimum wage provisions of the FLSA. Defendant moved to dismiss plaintiff’s claims; subsequently, plaintiff amended its complaint. Defendants argued that plaintiff’s complaint contained conclusory and boilerplate allegations. The court found that while the original complaint contained conclusory allegations, the amended complaint was sufficient to comply with FRCP 8, and put the defendant on notice of the plaintiff’s legal theory and claims against it.
Swartz v. Windstream Commc’ns, Inc., No. 09-946, 2010 WL 2723213 (W.D. Pa. July 8, 2010) (granting defendant’s motion for summary judgment and denying plaintiff’s motion for partial summary judgment).
Plaintiff, a former sales engineer for defendant, brought claims under the FLSA for overtime violations and under the ADEA and Pennsylvania Human Relations Act for wrongful termination. During a business reorganization, plaintiff’s position was eliminated; at the time, he was 61 years of age. Defendants contend that this termination was not based on age, but rather on plaintiff’s refusal to maintain current certification. The court found that because the retained employees were not significantly younger than plaintiff (at age 59 and 53), plaintiff could not make a prima facie case of age discrimination. Because of this, the court found for defendant on the ADEA and PHRA claims.
Plaintiff and defendant both moved for summary judgment on the FLSA claim. At issue was whether plaintiff qualified for the administrative exemption under the FLSA. The court found that although he did not manage any employees, had no authority to negotiate with customers and had no discretion to set prices, the plaintiff nevertheless exercised independent judgment in designing applications to meet a customer’s needs, and did not have immediate supervision. These factors, the court found, weighed in favor of finding that plaintiff was exempt under the FLSA. Accordingly, the court granted defendant’s motion for summary judgment on the FLSA claim.
Tolentino v. C & J Spec-Rent Servs. Inc., No. C-09-326, 2010 WL 2735719 (S.D. Tex. July 12, 2010) (granting defendant’s motion for partial summary judgment, and denying plaintiff’s motion for partial summary judgment).
Plaintiffs, employees of an oilfield service company, filed suit, alleging that they were improperly classified as exempt employees and denied overtime under the FLSA. Plaintiffs received a fixed weekly salary. Though the court has yet to rule on liability, both plaintiff and defendant moved for summary judgment as to the formula for damages in the event that defendant is found liable. The court, following Fifth Circuit precedent, ruled for the defendant that damages should be calculated by multiplying the number of hours worked over 40 in a workweek by one-half the plaintiffs’ regular rate (determined by the plaintiffs’ weekly salary divided by 40). Plaintiffs unsuccessfully argued that damages should be calculated by multiplying the number of hours over 40 by 1.5 times their regular rate. The court said it was without the authority to overturn prior precedent saying the former method was the correct way of calculating overtime wages.
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