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.

Obama Signs Memo to Strengthen Overtime Pay Rules

President Barack Obama signed a presidential memo this month directing the Dept. of Labor to come up with new overtime rules in order to make more workers eligible for time and a half pay. Obama has made it clear that he will bypass Congress when necessary to take action on economic initiatives. This is currently one of his most far-reaching executive actions this year even though new rules wouldn’t take effect most likely until 2015.

The new overtime pay rules would be focused towards workers on salary who earn more than $455/week and are ineligible for overtime due to management titles even though their actual job duties include few supervisory capacities. New regulations could change the definition of “supervisor” according to employment law. The salary/week limit separating workers who get paid overtime and those who don’t was last raised in 2004 by the Bush administration. Prior to 2004 it hadn’t changed since the 1970’s.  

Those in support of new overtime rules feel that millions of American workers could benefit from a change. Those who are against the change feel that increasing the number of workers eligible for time and a half pay for overtime would create a burden too heavy for small businesses and could potentially cost Americans jobs.  

Obama’s focus isn’t limited to overtime pay rules. This year, the President is also focused on federal minimum wage. He hopes to increase worker pay this year by calling on Congress to increase the minimum from $7.25 to $10.10.

For additional information on employment law, federal minimum wage and overtime regulations get in touch with the experts at Blumenthall, Nordrehaug & Bhowmik. 

Employees and Their Smartphones: Is Your Smartphone Overworking You?

In modern American culture most people are hopelessly attached to their smartphones. If that’s not the case, the remaining few (with rare exceptions) can’t deny that they have an extremely close relationship with other technology (i.e. their computer, laptop, tablet, etc.) There are a multitude of benefits that come from living in this technological day and age, but because of smartphones and all the other beloved technology, work is bleeding into employees’ personal time.

The recession put a lot of pressure on employers to get the most of their employees. As a result, American business owners are squeezing their workers and cutting costs at the same time. One way in which many American employers are doing so is by accessing their workers after hours through all of the convenient technology that leaves employees available 24/7. Vacations are often unrecognizable as such due to the fact that contact is never severed with the employer. Many employees find it hard to differentiate between hours worked and hours off due to the easy and frequent access employers avail themselves of freely.

Experts agree that if employers had to bear the actual expense of paying for the overtime hours they are demanding, they would have actively sought a different solution such as hiring more workers during the economic recovery.

In response to the seemingly never ending after hours access provided by technology, employees are asking the courts to find a solution. It’s a changing time as courts attempt to reconcile laws that have been in place for decades with technological trends that have drastically altered the workplace landscape. Never before have employees been so irrevocably connected to their employers without break.

In 2011, there were 7,006 wage-and-hour suits filed (many of them class action suits) in federal court. This was nearly quadruple the total in the year 2000. In 2011, the Labor Department was able to recover $225 million in employee back wages. This was up 28% from the previous year. 300 wage-and-hour investigators were added in 2010 and 2011 alone which resulted in a 40% staff increase (to a total of 1,050). This was done in what was openly declared and effort to protect America’s workers.

Consider the facts and then consider your employer/employee relationship. If you feel that you are stuck in a 24/7 job with 40-hour/week pay, get in touch with the experts at Blumenthal, Nordrehaug & Bhowmik today. Don’t let your smartphone take the blame. 

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. 

Employer Response to the Recession Not in the Employee’s Favor

During the recent recession, employees and employers alike were pushed right to the edge. In the aftermath, new trends emerged. Americans found themselves working longer hours – usually for the same or less pay than before the recession hit. This could be seen as logical due to the fact that employers laid off close to 9 million American employees during the recession.

The problem is that all the logic of this solution lies on the side of the employer. Many employees are now starting to strike back through their legal system. Since the recession’s peak in 2008, more employees are filing suit against their employers citing federal and state wage and hour laws. In 2012, the number of lawsuits filed was up 32% in comparison to 2008. Experts indicate that the massive rise in lawsuits filed is due in part to the post-downturn severity that permeated the workplace and created an artificial increase in productivity.

Some of the main grievances cited by workers’ filing suit included:

·      Being forced to work off the clock
·      Misclassification as exempt from overtime pay requirements
·      Misuse of smartphones/technology resulting in constant disruption of personal time by “work” issues

If any of this sounds familiar. You may need to look a little bit closer into your work situation. You could be one of the many Americans struggling for success in a work environment that makes success nearly impossible.

If you find yourself working longer hours with less pay get in touch with the experts at Blumenthal, Nordrehaug & Bhowmik today. You may need some expert advice to get your career back on a healthy track.