Posted by marykeating on March 23, 2010 under Federal wage and hour law, retaliation | 
The Supreme Court agreed yesterday to decide a case of critical importance to retaliation claims under the federal wage law, the Fair Labor Standards Act. The request to the Supreme Court presented one question for review:
Is an oral complaint of a violation of the Fair Labor Standards Act protected conduct under the anti-retaliation provision, 29 U.S.C. § 215(a)(3)?
Anti-retaliation laws give powerful protection for employees who either complain about their own discriminatory treatment, or someone else’s. Often the proof available to establish sexual harassment, for example, is too disputed for the plaintiff to win, but the employer’s retaliatory reaction is crystal clear.
For historical reasons the language of the Fair Labor Standards Act is different. That law dates from the Great Depression, while the Civil Rights Acts from the 60s, 70s, and 80s broadened the language defining retaliation.
In the case before the Supreme Court, a Wisconsin factory worker complained to his supervisor and to the company’s human resources department that the company’s location of time clocks was illegal. The placement of the clocks led to employees not being paid for time spent putting on and taking off protective clothing and Kevin Kasten warned his company, using the company’s reporting procedures, that it was acting illegally. He was warned, suspended and fired. The company lost in the trial court but convinced the appeals court that oral complaints cannot be “filed,” as required by the statute. 
The Supreme Court accepts very few cases every year, but one of its major criteria is whether there is a “split” in the Circuits, meaning that appellate courts of equal stature interpret the same law in opposite ways. This issue has split the Circuits, with many agreeing that to “file” a complaint does not require a piece of paper.
It is never safe to guess why the Supreme Court takes on a case, or how the case will come out. Still, it will be helpful to get this issue settled. If the Court upholds the Seventh Circuit, and permits retaliation for oral complaints of wage violations, the outcome will likely be more retaliatory firings, but also perhaps more union campaigns to combat the perceived unfairness, and more employees complaining in writing or to the Department of Labor when they believe there are wage and hour missteps.
Posted by marykeating on November 20, 2009 under Federal wage and hour law, Maryland wage law |
As previously mentioned here, Maryland’s Workplace Fraud Act imposes new penalties on employers who misclassify employees as independent contractors. At a talk before the Maryland State Bar Association’s Labor and Employment Section’s annual meeting recently, representatives from the state’s Department of Labor, Licensing and Regulation explained the Department’s focus on the landscaping and construction industries. Because studies had indicated that these industries were particularly likely to misclassify employees, the new Maryland law gave additional teeth to the Department in pursuing employers found to engage in a willful pattern of classifying employees as independent contractors. The harm to employees include the lack of worker’s compensation protection, the lack of unemployment benefits, the burden of the self-employment tax on employees, and the inapplicability of anti-discrimination laws. According to the State, more investigators are on the job. Employers should expect more audits of their workforce, as well as site visits.
The federal Department of Labor recently made a similar pronouncement. Yesterday, Secretary of Labor Hilda Solis stated:
“There is no excuse for employers who disregard federal labor standards – especially those that are designed to protect the most vulnerable in the workplace. The failure to comply with these basic labor standards means that workers are not receiving the money they have earned. It is both an economic issue and a fairness issue. America’s workers should rest assured that protecting worker rights is a top priority at the Department of Labor. To make good on that promise, I have hired an additional 250 new wage and hour investigators, a staff increase of more than one third, to ensure that we promptly respond to complaints and can undertake more targeted enforcement.”
Both federal and state laws permit an employee to obtain additional damages from an employer who willfully withholds wages or misclassifies an employee. Employers now need to watch employees and the government watching their practices.
Posted by marykeating on September 17, 2009 under Federal wage and hour law |
The Fair Labor Standards Act requires overtime pay for non-exempt employees who work more than forty hours in a week. A nonprofit organization in Florida is being sued for refusing to pay overtime to a worker who regularly logged more than 70 hours per week, as an “assistant manager” of a Ronald McDonald House. The article is intriguing because the lawyers are unusually candid. The plaintiff’s lawyer worries that some may criticize his client for suing a nonprofit with such a noble mission, while a management side lawyer admits that nonprofit organizations are more likely than for profit companies to violate these laws, saying that “nonprofits tend to treat most workers as exempt from overtime regulations.” The management side lawyer quoted in the article, Michael Casey III, of Becker, Epstein & Green, is not this defendant’s lawyer – the suit was just filed on September 10.
Although religious organizations have some special exemptions, nonprofits as a group are held to the same standards as other employers. Given that they often work with volunteers, too, these organizations may tend to treat their employees as freely available for off the clock work. Nonprofits need to mark a bright line between their paid workers, who should be able to choose how to spend their free time, and volunteers. The good news is that local nonprofits have reported that donations have not taken a nose-dive with this economy. Instead, it appears that people who still have jobs are even more sympathetic than ever to the plight of the less fortunate. The bad news is that costs for all employers continue to rise, affecting nonprofits and for-profits alike.
To avoid costly lawsuits, charitable organizations need to treat their employees fairly and try to fill in the funding gaps with increased fundraising, or volunteer help. Under the Fair Labor Standards Act, an employee is usually entitled to recover double the unpaid wages, as well as attorney’s fees, for wage and hour violations.
Posted by marykeating on September 2, 2009 under Collective rights, Federal wage and hour law, Maryland wage law, Wage and hour issues |
Did you see this, or hear it on NPR? A new study shows that many minimum wage workers are denied wages they have earned. The study surveyed workers in the most populous three cities, New York, Chicago, and Los Angeles. It found frequent, ongoing violations of the wage and hour laws, with the worst offenders in these industries: apparel and textile manufacturing, personal and repair services, and in private households. Illegal practices included paying a wage lower than the minimum wage, forcing workers to work off the clock, and denying overtime pay. Some of these violations are easier to hide when employers pay a flat daily or weekly rate to the employees, no matter how many hours are required.
In addition to the type of industry, the study identified several other factors that linked more strongly with wage violations. Not too surprisingly, the rate of violations are higher for employers paying by cash, as opposed to company check. Smaller employers are also more likely to pay their employees too little. Finally, those companies with a package of benefits were more likely to abide by the wage laws.
The study’s authors concluded that
“Employers that offer health benefits, provide paid time off, and give regular raises are following a business model where investing in workers leads to greater productivity, lower turnover, and other benefits for the company.”
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What to do about a violation
I have seen an increase in complaints about employers denying an employee’s last paycheck, and keeping poor records, leading to denial of overtime pay. The employer has an obligation to keep records of employee hours worked, and has the burden of proof to disprove an overtime or minimum wage claim. Still, courts have difficulty with the concept that the plaintiff worker should not have to prove his claim, and often that burden of proof is not applied correctly. Employees who witness wage issues should keep a careful daily log of their work hours, and make written complaints when they are not paid.
The Maryland wage and hour division is no longer unstaffed, and will pursue claims against employers. If an employee cannot get satisfaction, contact a lawyer. Although some of these claims are not large, state law permits a court to triple the damages for a failure to pay wages without a legitimate dispute, and allows reasonable attorney’s fees. Also, if there is one violation, chances are good that many employees are being underpaid, increasing the chances that a lawyer will take the case. The Fair Labor Standards Act also permits court access to enforce wage and overtime claims.
Posted by marykeating on July 28, 2009 under Federal wage and hour law, Pending legislation |
Speaking of the new minimum wage, which I did a few days ago, there are many exceptions to the requirement to pay minimum wage. One has received some attention lately, the tipped employee or waiter minimum wage, which has been stuck at $2.13 per hour since 1991. When I was in college in the 1970s, I made $2 per hour, earning slightly less than minimum wage at my dining hall drudgery job (paying college students less than minimum wage is also legal). For wait staff to make $2.13 per hour is rather shocking; unless they are in busy high-end restaurants, the minimum wage is probably a significant component of their compensation.
Representative Donna F. Edwards of Maryland recently introduced a law to increase the minimum wage gradually, H.R. 2570. In that law, dubbed the “WAGES Act,” for Working for Adequate Gains for Employment in Services, the minimum wage would be increased to $3.75 per hour three months after enactment of the law. In 2011, the minimum will again rise, to $5.00 per hour, and then keep pace at 70% of the federal minimum wage, or at least $5.50 per hour, by 2012.
According to census figures released by Representative Edwards’ office, “nearly 15% of all waiters and waitresses live below the federal poverty level, while only 5.7% of the workforce as a whole falls beneath this threshold. Minority populations are particularly hard hit by these low wages. According to the Census Bureau’s Current Population Survey (CPS), 22.3% of African-American tipped employees and 18% of Latino tipped employees live in families that are below the federal poverty level.” Women are also disproportionately affected.
