Category: Overtime/Wage & Hour

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Overtime/Wage & Hour

Uber and Lyft Drivers Strike

Uber and Lyft Drivers StrikeIt’s been in the news for weeks now, but in case you missed it, there was a strike initiated by the drivers who are contracted by Uber and Lyft. These are the two most popular ridesharing services in the country right now and drivers went on strike to demand better pay and benefits.

Ever since these rideshare services started, drivers have been classified as independent contractors, receiving no benefits from Uber or Lyft. Now, the drivers are demanding a change.

Independent contractor status vs employee

With the discussion of the classification of Uber and Lyft drivers, it’s important to understand the differences between being classified as an independent contractor versus being classified as an employee. The differences between the two classifications are as follows:

  • Independent contractors are not covered by employment and labor laws like employees
  • Independent contractors are required to complete a W-9 for the entity they provide services, unlike an employee, who completes a W-4
  • Independent contractors receive a 1099 if they earned $600 or more in a calendar year, while employees receive a W-2 from their employer for tax purposes
  • Independent contractors negotiate the payment terms (hourly, weekly, monthly or one lump sum), while employees are paid either hourly or salary wages
  • Independent contractors receive payments after submitting an invoice, while employees are paid on a weekly, bi-monthly, or monthly schedule
  • Independent contractors are not included in company reports made for state and federal unemployment insurance

How can drivers fit into these categories?

The question that remains in the conversation is whether or not rideshare drivers can fit into the employee category. Some rideshare drivers have complained in the past when their accounts have been deactivated by Uber or Lyft that they should be receiving unemployment benefits. However, courts have ruled that the drivers are not employees and that they are part of a digital marketplace. Other claims have been made, specifically in the District of Columbia, that rideshare and courier companies are violating minimum wage laws.

For drivers to fit into the employee category, they would need to the meet the requirements set forth by the Department of Labor. The guidelines for determining between independent contractor and employee status include the following:

  • How permanent the relationship is
  • The extent the services rendered are part of the business of the principal
  • The amount of investment in equipment and facilities of the contractor
  • The opportunity for profit and loss by the contractor
  • The control of the principal
  • The degree present of the operation of the independent business
  • The amount of initiative in the open market for the contractor to succeed

Have you been misclassified at your place of employment? Does your employer view you as an independent contractor when you should be considered an employee? If so, it’s time to contact the Gilbert Firm in Tennessee. Call 888-996-9731 to schedule a consultation with Tennessee wage and hour attorney Clint Scott, or use the contact form online. We operate offices in Nashville, Chattanooga, Memphis, Jackson, and Knoxville.

 

 

Categories
Overtime/Wage & Hour

Restaurant Worker Misclassification: Know Your Rights

Restaurant Worker Misclassification: Know Your RightsIn Tennessee and across the country, wage and hour violations in the restaurant industry are common – some would say rampant – even with laws in place to combat them. When you think of violations, you may think of things like employers doctoring timesheets or withholding tips. However, they can be much subtler.

The Fair Labor Standards Act (FLSA) regulates minimum wage, overtime, and record-keeping, and most employers are required to adhere to it. However, violations can be difficult to spot, and some of our lowest-paid workers find themselves particularly vulnerable. Understanding your rights as a restaurant employee is your first step toward compensation for the wages you’ve earned and deserve.

Misclassification of employees

One way restaurants may attempt to cut costs is by misclassifying employees. When there’s a lot of overtime involved, hourly employees can be costly to a restaurant’s bottom line. To reduce these costs, restaurants might create positions like “Assistant Manager” or “Floor Supervisors” for their employees, in order to reclassify them as salaried employees and avoid overtime pay.

These newly “promoted” employees are then expected to continue working in excess of 40-hour weeks, except without the benefit of overtime pay. By using exemptions under the law, employers seek to avoid paying thousands of dollars of overtime a year.

The Department of Labor (DoL) does allow employers to avoid paying overtime to certain salaried employees for certain types of work. There are several categories with their own eligibility requirements, but in general, exemptions to overtime are allowed for employees who:

  • Are paid significantly more than the employees they supervise;
  • Earn their pay based on commission or fees; and
  • Perform job duties outside the scope of what other workers are expected to perform.

Under the FLSA, however, it’s not the employee’s title that dictates eligibility for exemption from overtime. Rather, it’s the job duties. Here’s an example: If a restaurant host is given the title of Assistant Manager, but is still expected to continue to perform the duties as floor manager and host – seating people, answering phones, bussing tables – then he or she may not be exempt from overtime pay.

Salaried workers are not the only restaurant employees who may be eligible for overtime or back pay. Many restaurants misclassify their workers as independent contractors and therefore ineligible for overtime. However, the FLSA uses certain factors to determine whether or not workers are actually independent contractors.

If their work is on a set schedule, they’re given the materials they need to complete their work, they work in one location regularly, and are supervised/managed closely – this all points to employee status and not independent contractor.

What is my recourse if I’m being denied fair pay?

If you are being denied fair pay or overtime, you may be able to seek compensation from your employer, including:

  • Overtime back pay;
  • Liquidated damages; and
  • Attorney fees

Don’t be afraid to speak up if you believe you’re being denied the full wages you are owed.

The Tennessee wage and hour lawyers at The Gilbert Firm are experienced and knowledgeable in this area of law and will fight for you and your job. Call Clint Scott today at 888.996.9731, or fill out our contact form and schedule a consultation with any of our Tennessee wage and hour lawyers. We maintain offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville.

 

 

 

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FLSA Overtime/Wage & Hour

New Legislation Allows Employers to Replace Overtime with Paid Leave

New Legislation Allows Employers to Replace Overtime with Paid LeaveA new house bill, named the Working Families Flexibility Act, claims that it gives employees a new right, while lawyers and advocates argue that it violates workers’ rights to fair payment. The new law provides that employees who work overtime have the right to take paid leave instead of receiving time-and-a-half for overtime work.

Proponents claim the law provides more flexibility: employees can choose pay or time off. Opponents, however, say the choice comes with a steep price – the employer gets to decide whether paid leave or overtime pay be granted. The law applies to workers in the private sector who earn an hourly wage.

It is also at the discretion of the employer when the worker gets to take their paid time off, within the year. If they do not allow leave by January 31 of the next year, the employer has to pay the overtime pay. The employer gets to decide when the yearly cycle runs (January to December, July to June, or any yearly term).

Employees are only eligible for paid leave if they:

  • Worked for the company for at least a year
  • Worked at least 1,000 hours

Employers cannot pressure employees, through a threat of job loss or demotion, to take the paid leave. This means that if the employer retaliates by firing you or demoting you because you chose one type of pay over the other, you have the right to hold the employer accountable.

Employees can change their mind and request the actual overtime money – provided they give the employer at least 30 days’ notice.

Why the new bill does not protect employees’ best interests?

The dangers of this new bill are that employers can often subtly penalize the employee for not choosing the paid leave option over the financial pay option. Also, employers may manipulate overtime opportunities in advance depending on whether the worker is known to prefer overtime pay or paid leave. They may say that the worker is not a team player if paid leave is not chosen. Finally, the parameters of the law may delay workers receipt of overtime pay when they do request it.

Understand your employee rights, including your right to overtime pay and your remedies when an employer does not pay you fully and on time for honest work performed. At the Gilbert Firm, our Tennessee wage and hour lawyers fight for workers when employers try to take advantage of them. For help now, please call us 888.996.9731 or fill out our contact form to schedule a consultation with or Clint Scott or Jonathan Bobbitt. We have locations in Nashville, Chattanooga, Memphis, Jackson and Knoxville.

 

 

 

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FLSA Overtime/Wage & Hour

How Should Overtime Pay Be Calculated for Tennessee Employees?

Wage and Hour FAQs for Tennessee WorkersWe work to live; not the other way around. For this reason, the law provides that workers should be paid extra for overtime in certain circumstances. The Wage and Hour Division of the U.S. Department of Labor gives employers some options in how to calculate overtime pay when an employee is paid by the hour. The general rule is that any employee who works more than the maximum allowable weekly hours for a specific type of employment and is paid by the hour should be paid at least one and one-half times the employee’s standard pay rate. This 1 and ½ pay rate applies to each hour over the maximum allowed.

Different approaches to overtime pay

The different types of overtime pay calculations are:

  • Hourly pay. For hourly employees, the maximum allowable week is 40 hours. Any hours worked over 40 in the same week should be paid at the 1 and ½ rate. For example, if an employee is paid $16 an hour and works 50 hours in one week, then the employee is entitled to $24 an hour (the 1 and ½ times rate) for the 10 overtime hours they worked.
  • Piece rate. Piece rate is a payment method in which the worker is paid for performance (i.e. producing so many products). For this type of pay, the rate of pay is determined by dividing his/her earnings for the week by the number of hours worked. The employee then gets 1 and ½ times that amount for overtime work. For example, a worker who normally gets $450 for a 45-hour week earns $10 an hour. Because the maximum number of hours is 40, the employee has worked 5 hours of overtime work.

No matter whether an employee is paid bimonthly or monthly, overtime is to be calculated based on the compensable work performed each week. The pay rate must always be at least what the Fair Labor Standards Act sets as the minimum wage.

Employees have remedies if an employer does not pay the right amount of overtime wages on a timely basis. At the Gilbert Firm, our Tennessee wage and hour lawyers hold employers accountable to pay the full amount due to them plus statutory damages and legal fees when an employer violates any federal pay law. To schedule a consultation with or Clint Scott or Jonathan Bobbitt, please call us 888.996.9731, or complete our contact form. We represent clients in Nashville, Memphis, Chattanooga, Memphis, Jackson, Knoxville, and throughout the state.

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FLSA Overtime/Wage & Hour

Wage and Hour FAQs for Tennessee Workers

Wage and Hour FAQs for Tennessee WorkersTennessee workers have many wage and hour rights. Asserting those rights can often mean substantial pay benefits and better working conditions. Here are a few of the questions employees often ask about in meetings and consultations with a Tennessee employment lawyer from the Gilbert Firm.

What federal or state laws govern wage and hour benefits?

Tennessee does not currently have strong wage and hour protection laws, so we use the federal laws as our guides. The Fair Labor Standards Act (FLSA) is the main law that applies to employees who want to get their fair pay. The FLSA delineates the following:

  • The standard workweek of 40 hours
  • Mandatory minimum wage
  • What constitutes overtime and how much an employee is entitled to be paid for overtime
  • Child labor restrictions

Should I be paid overtime?

Generally, Tennessee employers are entitled to overtime pay if they work more than 40 hours per week. Overtime pay is time and half, or 150% of your standard rate of pay. For example, if you normally earn $10 an hour, your overtime pay will be $15 an hour.

There are many exemptions to the overtime pay requirement. Some of the more commonly excluded groups include:

There are strict criteria for each exempt status. If the worker does not  meet the specific criteria, he/she may be entitled to overtime pay. It is best to review the criteria with an experienced Tennessee wage and hour lawyer to see if you are entitled to additional overtime income.

When should I receive my overtime pay?

Employers should make the overtime payment on your regular payday. For example, if you are paid every two weeks, then you should get your overtime pay at the end of the two-week cycle. If there are bookkeeping difficulties, then you should get your overtime income no later than the next pay cycle.

Can an employer pay someone else more than me if they are doing the same work?

The federal Equal Pay Act requires that workers who use the same skills and effort and have the same responsibility should be paid the same amount of money if they work under similar conditions in the same establishment, regardless of their gender. There are exceptions for seniority and other factors.

Employers also cannot discriminate against a worker, including their amount of pay, based on race, national origin, religion, sex, and other identity factors.

What damages are allowed for FLSA claims?

If an employer fails to pay you the full amount due, you can sue for the following items:

  • All of the back pay that is due to you
  • Your lawyer fees and court costs
  • Liquidated damages – a penalty usually equal to the amount of the back pay.

Should I be paid for meal breaks?

The FLSA requires that employees be paid for meal breaks if meal time is offered and if the meal time is 20 minutes or less. Under State law, employees are generally entitled to a meal break for any shift of six hours or longer.

Other common questions include inquiries about payment for rest breaks, payment when the work relationship is ending, how vacation time and personal days affect wage benefits, minimum wage, and the time to travel for work.

These questions are a sampling of the issues that employees in Tennessee and other states often face. Each employee’s case is different. The Tennessee FLSA lawyers at the Gilbert Firm can answer your questions and let you know if you have a case for damages. To make an appointment with Michael Russell or Clint Scott, please contact us at 888.996.9731 or fill out our contact form.  We have offices in Nashville, Chattanooga, Memphis, Jackson, and Knoxville.

 

 

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Labor and Employment Overtime/Wage & Hour

Tennessee Equal Pay Act Attorneys Demystify EEOC Law

Tennessee Equal Pay Act Attorneys Demystify EEOC LawThe Equal Pay Act of 1963 requires that men and women who perform comparable work be compensated with equal pay, including “perks” like benefits packages, retirement plans, vacation time, etc. As with most laws, the devil is in the details. The Equal Pay Act looks at the skills, effort, and responsibility of workers who labor under similar working conditions in the same establishment.

Equal Pay Act key terms explained

The U.S. Equal Opportunity Commission, which oversees the federal Equal Pay Act, defines these detailed requirements as follows:

  • Skill is based on what qualifications are needed to do a specific job. Employees have the same skill set if they have same type of education, ability, training, and work experience to perform the tasks the job demands. That one employee has more education than another is not a factor as long as they both have the minimum education to do the job assignments.
  • This is the amount of mental exertion or physical force that is needed to do the job. For example, if a man and a woman both drive a truck about 200 miles during the day, that would require the same effort. If a man drives 400 miles daily and the woman 200, then the man’s job would require more physical effort than the woman’s – even though both might have the same skill set, i.e. the ability to drive the truck.
  • Responsibility. Two cooks who both prepare food have the same responsibility if they are cooking the same types of food. A cook who also has to order the food and do inventory has more responsibility than the cook who only prepares the food and is, thus, entitled to more pay.
  • Working conditions. The job conditions are generally the same if each employee works in the same physical setting and is exposed to the same internal and external elements. Work conditions are not comparable, for example, if one employee has access to the Internet, a company-issued laptop, and access to printing codes, but the other does not.
  • Establishment. The establishment is the physical location of the business rather than the whole of the business itself. A worker employed in the copy center of a Staples retail store in Nashville, for example, might be considered as working in the same establishment as one working in a Staples in another Nashville location, or even in Chattanooga. An employee who works in the warehouse and not the retail store would likely not be considered as working at the same establishment.

Understanding how these terms apply to specific circumstances can be challenging. A qualified Tennessee equal pay act attorney can assist in determining whether or not you have a claim.

If your coworkers are receiving higher pay, better stock or profit sharing options, more vacation time, or other advantages even though you are doing the same type of work and no unique situations apply, you have rights. At the Gilbert Firm, our attorneys have a respected track record of holding employers accountable if they do not follow the law. To learn about your rights, please call Jonathan Bobbitt at 888.996.9731, or complete our contact form. We maintain offices in Nashville, Chattanooga, Memphis, Jackson, and Knoxville.

 

 

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FLSA Overtime/Wage & Hour

Federal Contractors are Often in Violation of Overtime Pay Laws

Federal Contractors are Often in Violation of Overtime Pay LawsA recent report by the Center for Public Integrity revealed that many federal contractors are not paying their workers overtime pay, violating wage laws such as the Fair Labor Standards Act (FLSA). The investigation revealed that, despite these numerous pay violations, many contractors were being awarded new contracts.

Workers like Karla Quezada, who worked 11 years for a Subway restaurant shop in the Ronald Reagan Building and International Trade Center in Washington D.C., rely on the government to provide justice. She and many other workers like her rely on the Wage and Hour Division of the U.S. Department of Labor to do its job and police the nation’s businesses. The Wage and Hour Division has the authority to enforce laws that affect wages, family and medical leave, and visas; but cuts in funding and changes in Washington have made it harder to find the resources to investigate and pursue violations. The Trump administration’s budget proposal calls for additional cuts of over 20%.

The Obama administration tried to remedy the problem by providing that federal contractors would have had to disclose wage and safety violations and demonstrate that they were in compliance with the laws before they could be granted new contracts or be allowed to continue doing business with the government. The Trump administration and Congress undid this measure, stating that it would impede the federal procurement process.

Workers like Ms. Quezada can file their own complaints but often they fail to have the necessary documentation and understanding of how to process a legal claim. Ms. Quezada said she regularly worked 15 hours overtime each week, but was never paid the time-and-a-half pay she deserved. Extra pay would have made a significant difference in her life, including her living options. The additional wages would have also increased opportunities for her children.

The Center for Public Integrity report

The Center studied some of the most egregious violators of federal pay laws – those who had a history of large fines and a high number of violations. The Center cross-checked the records of the Department of Labor database where the violations are listed, with over 30,000 contract records in the databases of the U.S. Treasury. Between January 2015 and July 2015, it was discovered that:

  • 68 contractors with a history of violations were awarded $18 billion in contract modifications or grants. Some of the violators included Cornell University and Sterling Medical Associates.
  • The U.S. Department of Defense had working contracts with 49 violators. These violators were awarded $15 billion in contracts even though they owed $4.7 million in back pay.
  • About 11,000 workers across the country were affected by the violations.

Many workers who are not paid fairly fear losing their jobs if they file a complaint and, thus, never seek recourse. Some do not understand that employers may be required to pay them for overtime work, provide reasonable breaks, and compensate them for meal breaks. At the Gilbert Firm, our Tennessee wage and hour attorneys like Michael Russell and Clint Scott file claims when violations of the law occur. We demand that the worker be paid for his/her losses and that the employer pays the worker according to the law going forward. To talk with one of our lawyers in Nashville, Chattanooga, Memphis, Jackson, or Knoxville, please call us at 888.996.9731, or complete our contact form. We are ready to help you get justice.

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Overtime/Wage & Hour

The Tennessee Supreme Court Rules Against Tipped Employees

The Tennessee Supreme Court Rules Against Tipped EmployeesIf you work in the food service industry, there is a good chance that your pay is supplemented by tips. Some restaurants and clubs have a set-up called a “tipping pool;” instead of an individual server retaining all of the tips from an individual table, a portion (or all) of those tips are pooled together and distributed amongst certain members of the staff who are eligible under whatever system has been put in place by the employer.

Eligibility is usually limited to other tipped employees: other servers, bartenders, food runners, etc. Under federal law, employees “who do not customarily and regularly receive tips, such as dishwashers, cooks, chefs, and janitors” are not included in a tip pool, as per the Fair Labor Standards Act. Therefore, it seems perfectly reasonable that Kim Hardy, a former server and bartender for the Tournament Players Club at Southwind, would claim that she was owed money by the Club, whose mandatory gratuity was divided not only among tipped employees, but among members of the kitchen staff as well as managers.

The Tennessee Supreme Court didn’t see it that way, however. They unanimously ruled “that Tennessee’s legislature had given no indication that it intended to allow a private citizen, such as Ms. Hardy, to file a lawsuit to collect damages for violation of the Tip Statute.” In their opinion, the only option was to charge the Club with a misdemeanor; Ms. Hardy, however, was entitled to nothing under state law.

Federal wage and hour law can overrule state law

It is important to remember that the decision has no impact on the FLSA, which is the federal law that protects tipped employees. The Tennessee Supreme Court’s ruling was limited to the Tennessee Tip Statute. If an employer’s pay practices violate the Fair Labor Standards Act or some other federal law, the employee may sue in federal court under federal law.

Wage and hour violation claims, such as Ms. Hardy’s, require skilled representation, and a willingness to fight for what is right. At the Gilbert Firm, we have the experience, the resources and the skills to handle complex FLSA claims at the state and federal level. If you believe you have been denied your rightful pay, our Tennessee wage and hour attorneys like Michael Russell are here to help. Please call 888.996.9731, or fill out our contact form to schedule a consultation at one of our offices in Nashville, Chattanooga, Memphis, Jackson or Knoxville.

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FLSA Overtime/Wage & Hour

What is “Chinese Overtime”?

Well, “Chinese Overtime,” first of all, is a phrase that I’m not terribly comfortable with, because I find it a little culturally offensive, to be candid with you. But in the workplace, employees often refer to “Chinese Overtime” as a way that they’re being paid. What that really means is some employers take advantage of a regulation that allows them to pay half-time to employees who work overtime, rather than time-and-a-half. And I can tell you that the majority of the time that employers try to do that, they do it wrong.

And so, if an employee ever looks at his paycheck, and it looks like he’s getting paid half-time instead of overtime, or if an employee is ever told that he’s being paid what’s called “Chinese Overtime,” I would really encourage that employee to call the Gilbert Firm; let us take a look at the pay practices of the employer, because it may very well be that that employee is not getting paid for all the overtime that they’re owed. / END TRANSCRIPT

How does “Chinese Overtime” work?

The real term for “Chinese Overtime” is fluctuating workweek, and it applies only to certain non-exempt employees. Let us use a very simple example: say you work a job where some weeks are busier than others. During busy weeks, you get 10 hours’ worth of overtime – but during slow times, you’re lucky to hit the 40-hour mark. So, your boss offers to pay you using a fluctuating workweek method: you are paid a set salary for 40 hours, regardless of how many you actually work. But instead of getting time-and-a-half for any overtime, you only receive half-time for those extra hours. And while receiving that extra pay during slow weeks is probably really nice, this method can deny you a substantial amount of overtime pay over the course of weeks, months or even years.

That is why you should contact the Gilbert Firm if you think you may have been denied overtime pay by your employer. Our Tennessee wage and hour attorneys can help you seek the compensation you’re entitled to have. To schedule an appointment with Michael Russell or with any member of our team in Nashville, Chattanooga, Memphis, Jackson or Knoxville, please call 888.996.9731, or contact us today.

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Overtime/Wage & Hour

Andrew Puzder Withdrew as Nominee for Labor Secretary – But Why?

Andrew Puzder Withdrew as Nominee for Labor Secretary – But Why?

A new Administration always means a new Cabinet. As employment lawyers, the choice we are most interested in is the President’s nominee of Secretary of the Department of Labor. Until yesterday, that was Andrew Puzder. He’s a former corporate attorney, but most people associate him with his role as the president and CEO of CKE Restaurants, Inc., the company which owns the Hardee’s and Carl’s Jr. fast food chains.

Because he is often credited with saving those franchises, Mr. Puzder had a number of supporters who think he will be the ideal Labor Secretary. But there are some actions and stances he has taken that gave rise to intense scrutiny and criticism from both sides of Congress. As the New York Times explains in detail, that included:

  • “Criticized paid sick leave policies of the sort recently enacted for federal contractors.”
  • Argued against the expansion of overtime pay eligibility.
  • Argued against raising the minimum wage.
  • Praised automated service products because, in his words, the machines are “always polite, they always upsell, they never take a vacation, they never show up late, there’s never a slip-and-fall or an age, sex or race discrimination case.”
  • Argued for the dismantling of the Affordable Care Act, which directly affects business with enough employees to require they offer health insurance.
  • Been plagued “by stories from workers for CKE’s primarily franchised fast-food restaurants who have come forward in recent weeks to complain about wage theft and other labor conditions,” as per Reuters.
  • Not divested any of his company holdings because CKE Restaurants is privately owned, which could lead to a “possible conflict of interest with regulating an investment Puzder might hold, such as interest in a fast-food enterprise with thousands of employees,” as per CBS News.
  • Been fervently opposed by labor unions, including the AFL-CIO, for his “vehement opposition to a recent National Labor Relations Board decision that would make it harder for corporations to manipulate the system and avoid bargaining with employees over improvements in the workplace by hiring temporary workers or contract workers.”

There was also a lingering concern, though it is often discussed as an afterthought by journalists, about the overtly sexual nature of CKE’s ad campaigns. While there is nothing illegal about running advertisements of “beautiful women eating burgers in bikinis,” as Puzder puts it, one may wonder how reflective this marketing strategy is of the company’s treatment of women. This is in conjunction with a recent survey conducted by the Restaurant Opportunities Centers (ROC) United which, as reported by Salon.com, shows “A whopping 66 percent of female CKE workers ROC surveyed had faced sexual harassment. Harassment came from supervisors, co-workers or — most often — customers, and took the form of sexual comments, groping, unwanted sexual texts and pressure for dates.”

Most employee rights advocates believe his withdrawal was merited.

The Gilbert Firm has always advocated on behalf of Tennessee workers whose rights have been violated, and we will continue to do so no matter who is confirmed in this position. If you have been denied equal pay, have been the victim of sexual harassment, have been denied your rightful overtime, or have been hurt by your employer, you do have legal options. We invite you to contact Michael Russell or any of our Tennessee wage and hour attorneys to find out more about our services and our experiences. Please call 888.996.9731 or fill out this contact form to schedule a consultation time at one of our offices in Nashville, Chattanooga, Memphis, Jackson or Knoxville.