Posted by marykeating on October 19, 2009 under Uncategorized, Wage and hour issues | 
The Fair Labor Standards Act requires hourly employees to be paid for time worked, and for time during which the employer “suffers or permits” the employee to work. Many disputes arise over the right to payment for time spent putting on protective clothing, reaching the workplace (for example, going through security and walking to the timeclock), and waiting time. Some rules are clear, and others still await court clarification. But today I’m going to discuss the right to be free from retaliation for complaining about a practice that may violate the law.
As defined in the FLSA retaliation means “to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter.” 29 U.S.C. § 215 (a)(3). To show that retaliation, the employee has to first establish that the complaint falls within the narrowly defined range of activities. In practical terms, this means that it is not enough to complain to human relations that employees are not being paid overtime, for example. The employee has to filed a complaint with the Department of Labor or a court.
This standard is stricter than the rules for race and sex discrimination and harassment. A victim of sexual harassment can meet the protected activity definition by complaining to management of the behavior, and stating clearly that she finds it offensive and unwelcome.
In addition to showing that the protected activity is, indeed, protected by the law, a victim of retaliation has to show “adverse action.” In our area, that is usually held to mean that the employee has been fired, demoted, or denied a promotion. In extreme circumstances the courts will consider the kind of behavior that most of us recognize as “retaliation:” ostracism, snickering, relocation to a smaller office, assignment to worse tasks (or no tasks). But beware, often the kind of treatment that makes life in the workplace really unpleasant does not suffice for a retaliation claim.
Finally, the plaintiff has to establish that the adverse action was caused by the protected activity.
Though these three burdens may appear difficult, retaliation claims often are received well in court. Sometimes employers are so outraged that someone dared to complain that the retaliation is clear and unambiguous. In addition, courts may not always agree that certain behavior indicates racial bias, for example, but they do take offense at an employer retaliating against someone exercising his rights in good faith.
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.”
Page 38
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 August 13, 2009 under Wage and hour issues |
Both private and public employers have been experimenting with cutting back employees’ hours instead of choosing some for layoff. The benefits of this strategy include sparing some of the employees from the devastation of a full layoff, improving morale, and saving on the severance or unemployment benefits costs of laying off employees. For employers expecting to bounce back as the recession eases, keeping the employees also will make it easier to spring back into action. Employees are not likely to enjoy the cut in pay, but some may make good use of the extra time.
This practice works most smoothly for hourly employees, who must be paid for all hours worked, at least minimum wage, plus overtime pay. If an employee who used to work five full days per week is reduced to four, the employer must pay him for the four days. This strategy can backfire if the furlough is in name only. If employees actually are working on the days when they are supposed to be off, then the employer is in danger of violating the Fair Labor Standards Act and Maryland’s Wage Payment and Collection Act. Actual work includes checking email and voicemail messages, responding to customers or coworkers, and waiting on call in some instances, depending on the amount of freedom the employee has while waiting to be called into action. If the employee often works from home or from the other end of a telephone or blackberry, the employer needs to be vigilant to be sure that the employee is not responding as usual on a furlough day.
Exempt employees pose a more difficult problem. An employee exempt from overtime compensation requirements must meet responsibility requirements, as well as the salary test, in which the employee must earn $455 or more per week. If the employee does any work during a week, the entire week’s salary must be paid. An exception is made if there is a sick or personal leave policy; in that case full (not partial) days of sick or personal time, or days on which the employee does not work because of disability, may be deducted from pay, with personal/sick leave to fill in the gaps if it is available. The employee’s leave balance can also be used to supplement the employer’s “sick” time, days in which there is not enough work.
In other cases there is not enough sick or other leave time to pay for furlough days, or the employer simply cannot afford to keep so many exempt employees on full-time status. Then to furlough an exempt employee in the private sector, the employer has to cut the employee’s pay. In Maryland, employees are entitled to two week’s notice of a salary reduction. And the new pay may not be less than $455 per week. An employer risks losing the exemption when it violates the rules about deductions from pay.
Posted by marykeating on July 15, 2009 under Uncategorized, Wage and hour issues |
You have seen this posted for two years, since Congress began implementing incremental minimum wage increases two years ago. So don’t forget, as of July 24, 2009, the federal minimum wage will increase from $6.55 per hour to $7.25 per hour. You can keep the same poster until something else changes, though.
Minimum wage seems easy enough to understand, but in fact there are many ways in which an employer can make mistakes, whether on purpose or inadvertently. One thing to remember is that states are permitted to impose a minimum wage different from the federal wage. If it’s higher, the state minimum wage controls. Maryland automatically follows the federal standard, so the amount of the minimum wage is equal.
But since not all jobs are subject to the federal minimum wage, Maryland’s minimum can be important. A job not subject to minimum wage under federal law may be subject to the Maryland law. (Federal law applies to jobs affecting interstate commerce; that cuts a wide swath across the economy, but there are occasional exceptions.) In addition, Baltimore City has a minimum wage equal to the federal and state minimum per hour, and affects employers of at least two people. So, in other words, only you self-employed people are completely exempt, and can work for less than minimum wage (but you already knew that). But for certain service contracts with the City, employers must pay at least $10.19 per hour, as of July 1, 2009. A still-higher prevailing wage is payable on city construction contracts.
Under federal law, exceptions to the minimum wage exist for certain categories of workers. For example, workers with disabilities and certain students may be paid less than the minimum wage, for policy reasons supporting employment of the disabled, whose employment level is quite low, and to encourage hybrid learning/working situation. In addition, workers under the age of 20 in their first 90 days of employment may be paid a minimum of $4.25 per hour, to encourage successful first forays into the job market.
Perhaps the most widespread area of confusion and abuse relates to tipped employees. Under federal law, a tipped employee must earn a wage of at least $2.13 an hour if that amount, combined with the tips, equal at least the minimum wage. This exception also requires that the employee keeps all of the tips he receives, and that he or she gets at least $30 in tips per month. In Maryland, the minimum direct wage, paid by the employer, has to be 50% of the minimum wage.
I have occasionally seen employers try to game this exception by not permitting the employees to keep their tips, or cutting the minimum wage to nothing when tips are high. Splitting tips with others in a restaurant, for example, is a tricky area. It does not violate federal law, if it is the regular practice of the establishment, but it does require the payment of the full minimum wage to the servers.
State law may be more protective. Starbucks’ big loss in California of more than $105 million on this issue was overturned on appeal last month. Read more here.
Critical to that decision were two factors: one, that the tips were in pooled plastic tubs, and two, that shift supervisors were not really management employees, and often prepared and served coffee just like the lower level baristas. (Also, this case arose under California law, not the federal Fair Labor Standards Act.)
I’ll talk about overtime issues in another post. That area is even more complex and riddled with exceptions than the minimum wage law.
.
