There are certain violations of wage and overtime laws that are typical in particular occupations and/or industries. And despite many lawsuits in these industries, violations of Wage and Hour Laws (including the FLSA) seem to continue. Below is a list of some of the industries and/or occupations where these typical FLSA violations occur more frequently. This list is not exhaustive and there are many other industries and occupations where employees are commonly deprived of their rightful regular and overtime wages. If you are in an an occupation or industry not listed below, but you feel that your employer is not paying the correct wages for all hours worked or not paying the required overtime, contact us for a free consultation
Cable and line installers are frequently treated as independent contractors, even though they work for a single company exclusively, receive pay set by that company, and have no opportunity to increase income other than by working longer hours. The fact that the company pays such workers as an independent contractor and reports such pay on an IRS Form 1099, does not make this pay practice legal. If installers work more than 40 hours in a week and are not paid overtime premium pay at the rate of time and one half, there may be a valid claim for back pay and an equal amount in liquidated damages.Satellite TV installation technicians around the US have brought suit for having been forced to work overtime hours but record less than forty hours on their time sheets. For example, DirecTV installation subcontractors have been sued by technicians in many jurisdictions for requiring installers to work “off the clock” without paying time and one half for overtime hours.
CALL CENTER EMPLOYEES
Call center employees (e.g., customer service representatives and telemarketers) are frequently required to perform uncompensated work before and after their scheduled shifts. Call center employees are often required or encouraged to be on the phone for all or nearly all of their clock hours. As a result, time spent preparing to get on the phone, such as turning on the computer, reading emails or daily instructions, and completing paperwork is not compensated. The FLSA requires that employers pay employees for all hours worked.
Car mechanics are frequently paid either a salary, job rate, or an hourly rate. There is noovertime exemption for auto mechanics outside of a dealership and so mechanics must be paid time and one half for all hours over forty in a work week. Some auto dealership mechanics may be exempt, however.
CHEMICAL PROCESSING PLANTS' EMPLOYEES
Employees working in Federal facilities or private chemical plants usually have to don safety gear and/or change clothes and shower before leaving. These are similar to meat/poultry processing plants. Employees are not paid all hours works, including hours spent on pre- and post-shift time for donning and doffing safety gear, change clothes, and/or shower.
COMMISSION ONLY PAID EMPLOYEES
(Mortgage Originators and Others in Financial Industry, Stock/Investment Sales) Mortgage originators, financial service representative, stock/investment sales representatives (often called “loan officers”, “account executives”, or other titles), are routinely paid on commission-only, or commission plus draw, or even a salary basis. Mortgage sales staff, who work from call centers are generally not exempt under any FLSA exemption. Even loan officers who are considered to be outside sales staff are frequently not exempt from the FLSA overtime pay requirement. Despite years of back pay lawsuits, these industries continue to fail to abide by their obligation to pay loan officers (and other similar financial industry employees) overtime as the law requires.
Computer (IT) WorkersMany IT workers are wrongly denied overtime compensation, because workers and employers believe that IT workers are exempt under the “computer professional” exemption. In reality many employees who work with computers are eligible for overtime. The exemption mostly applies to computer programmers and systems analysts. So computer employees who really are “systems analysts” and “programmers” are exempt from overtime. The exempt computer employees must be paid on salary basis, or must be paid hourly at a rate not less than $27.63 per hour. However, this exemption from overtime does not apply computer employees who work: (a) in operation of the computers or, (b) in the manufacture, repair or maintenance of computer hardware and related equipment.If you spend more than fifty percent (50%) of your time in such tasks as:
Installing computer hardware and/or software;
Maintaining and updating computer systems;
Troubleshooting computer or network systems
and you follow the set procedures and rules; and work under close supervision of supervisors or managers, then you and other workers like you may be entitled to overtime pay, in addition to your regular wages. The Fair Labor Standards Act requires that your employer must pay you 1.5 times your hourly rate for each hour over 40 hours worked in a week.
Typical problems include:
Failure to record all hours worked to include time spent workingbefore or after the shift.
Shorting of hours by using terms such as down time or rain delay.
Failure to compensate for meal breaks where the employee is not completely relieved of all duties to enjoy uninterrupted time for the meal.
“Banking” of overtime hours or payment of overtime in the form of “comp time.”
Failure to combine the hours worked for overtime purposes by an employee in more than one job classification for the same employer within the same workweek.
Failure to segregate and pay overtime hours on a workweek basis when employees are paid on a bi-weekly or semi-monthly basis.
Failure to pay for travel from shop to work-site and back.
DRIVERS OF VEHICLES UNDER 10,001 LBS.
On August 10, 2005, Congress changed the overtime law for drivers of vehicles with a Vehicle Gross Weight Rating of 10,001 lbs. or less. Drivers of these vehicles were generally exempt from the federal overtime law prior to August 2005 (if they carried goods across state lines, or if the goods originated out of state), but now these drivers are not exempt and are covered by the federal overtime law. This change in the law will have a very significant impact for Route Delivery Drivers (for example, Newspaper Route Drivers and sales managers who oversee drivers but also handle routes) and repairpersons (those who carry parts that originated out of state). This change in the law is one of the most positive developments in overtime law in the last two decades. It has gone largely un-noticed in the press and by employers, who may continue to believe that drivers of these vehicles are exempt, simply because they are carrying goods which originated out of state.
HOME HEALTH CARE WORKERS
Employers who provide home health care services for individuals who (because of age or infirmity) are unable to care for themselves may or may not be required to pay minimum wage and/or overtime premium pay depending upon the type of services provided and the nature of the working relationship. Employees providing “companionship services” as defined by the FLSA need not be paid the minimum wage or overtime. Trained personnel such as nurses, whether registered or practical, are not exempt from minimum wage or overtime under the exemption for companions, but registered nurses may be exempt as professionals. Certified nurse aides and home health care aides may be considered exempt from the FLSA's wage requirements depending upon the nature of their work.
Persons employed in domestic service in households are covered by the FLSA. Certified nurse aides, home health care aides, and other individuals providing home health care services fall within the term ” domestic service employment. An employee who performs companionship services in or about the private home of the person by whom he/she is employed is exempt from the FLSA's minimum wage and overtime requirements if all criteria of the exemption are met. “Companionship services” means services for the care, fellowship, and protection of persons who because of advanced age or physical or mental infirmity cannot care for themselves. Such services include household work for aged or infirm persons including meal preparation, bed making, clothes washing and other similar personal services. General household work is also included, as long as it does not exceed 20 percent of the total weekly hours worked by the companion. Where this 20 percent limitation is exceeded, the employee must be paid for all hours in compliance with the minimum wage and overtime requirements of the FLSA. The term ” companionship services” does not include services performed by trained personnel such as registered or practical nurses. Registered nurses may be exempt from overtime through professional exemption. However, individuals other than trained personnel (such as nurses) who attend to invalid infants and young children are considered companions, rather than babysitters, and their status may thus be within the companion exemption.
An employee who provides care and protection for minor children, where the children are not physically or mentally infirm, must be paid the minimum wage and proper overtime compensation. This activity would not constitute exempt companionship services.
Under the FLSA, industrial homework (as defined in Reg. 530.1(d)) means the production by any person in or about a home, apartment, tenement, or room in a residential establishment, of goods for an employer who suffers or permits such production, regardless of the source (whether obtained from an employer or elsewhere) of the materials used by the home worker in such production. Examples of work performed by home workers are: a person who sews at home; a person hired to do data processing at home; a person who is hired to do telephone surveys from their home; a person who manufactures jewelry at home; a person who ties fishing flies at home; a person who does bookkeeping, payroll or other clerical work at home.Many employers improperly treat home workers as ” independent contractors.” Employers fail to assure that home workers paid on piece rate basis have earned the minimum wage. The employer must bear the cost of tools purchased as well as tool maintenance and repair to the extent that these costs cut into the minimum wage or overtime wages required.
HOTELS AND MOTELS
Employees placed on salary and classified as exempt without regard to the duties performed. Failure to record and pay employees for all hours suffered or permitted to be worked.Illegal deductions from pay for items like cash register shortages, uniforms, errors, bad checks, etc. Failure to pay the correct overtime rate to tipped employees, or failure to pay the correctovertime rate that includes all service charges, commissions, bonuses and all other remuneration. Paying straight time for hours worked beyond 40 per week instead of required overtime pay, or averaging the number of hours worked over two or more weeks to avoid overtime pay.
Employees who work in manufacturing, processing, and distributing establishments (including wholesale and retail establishments) that produce, handle, or work on goods for interstate or foreign commerce are included in the category of employees engaged in the production of goods for commerce. The minimum wage and overtime pay provisions of the FLSA apply to employees so engaged in the production of goods for commerce.
Employers fail to count and pay for all hours as work time such as time spent oiling, greasing, cleaning or installing machines at the start or end of the workday; time spent in travel from job site to job site; or time spent at a designated place to receive instructions or to pick up and carry tools to a designated place. Employees are sometimes treated as exempt simply because they have impressive titles or are paid on a salary basis.
MEAT (FOOD) PROCESSING FACILITIES
Meat processing facilities frequently fail to comply with the FLSA. Typically, employers fail to pay employees for the time spent donning and doffing required sanitation gear and personal protective equipment. Employers in the meat processing industry must capture and pay employees for all time spent donning and doffing required sanitary/safety gear and equipment. These employers must also pay for all the related walking and waiting time as well as other related duties (such as sharpening knives or sanitizing equipment). Employers in this industry also frequently fail to pay their employees for production work, and donning and doffing, performed during their meal periods.
Mechanical/Electrical/Structural Designers-Detailers-Draftsmen, employees who make fabrication drawings from information provided by engineers or other professionals, are generally not exempt from the FLSA's overtime requirements. In some industries, such as the oil and gas industry, many employers pay employees in these positions on a salary basis and do not pay overtime.
NURSES AND LPNS
Nurses work hard in a difficult environment and usually work long hours, but many nurses, including LPNs and RNs, are misclassified as exempt and not paid overtime wages. LPNs and other similar health care employees are entitled to overtime pay. Whether you, as a nurse, are exempt from overtime depends on what your duties are, what your educational background is, and how much money you are paid.Registered nurses can properly be classified as exempt from overtime if they qualify for the “learned professional” exemption.To qualify as a learned professional, all of the following tests must be met: The employee must be compensated on a salary or fee basis and the employee's primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment; the advanced knowledge must be in a field of science or learning; and the advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction. Registered nurses who are paid on an hourly basis should receive overtime pay.
NURSING CARE/RESIDENTIAL CARE FACILITIES
The most common violation in the nursing care industry is the failure of employers to pay for all hours worked. This uncompensated time most frequently occurs when employers fail to pay for work performed: before and after a worker's scheduled shift; during an employee's scheduled meal period; and while employees are attending staff meetings and compensable training sessions. Minimum wage and overtime pay violations also occur when employers make deductions or demand reimbursement for the cost of required uniforms or equipment.
Yes, the FLSA applies to professional offices too, e.g., doctors, lawyers, accountants, etc. Typical violations in professional offices include:
Paying non-exempt employees a salary and not paying time and one-half for hours over 40 a week,
not paying employees for all hoursthey work, e.g., reporting early or working through lunch break or staying late without being paid for such extra time,
not paying for the time employees spend performing work at home or not including such hours for overtime purposes.
FLSA, Section 7(i), exempts certain employees of “retail and service establishments” who are paid on a commission basis in whole or part from the FLSA's overtime pay regulations. There are two requirements for a business to be considered a “retail or service establishment”: 1. Seventy-five percent (75%) of the annual dollar volume of the sales of goods or services (or of both) come from sales that are not resale; and 2. The sales of goods or services (or of both) are recognized as retail sales in the particular industry. Some examples of establishments which may be retail are: automobile repair shops, bowling alleys, gasoline stations, appliance service and repair shops, department stores and restaurants. Some examples of establishments which are not retail are: accounting firms, medical and dental clinics, construction companies, and radio and television stations. For retail or service employer to be exempt from overtime for commissioned employees, three conditions must be met:
The employee must be employed by a retail or service establishment; and
The employee’s regular rate of pay must exceed one and one-half times the applicable minimum wage for every hour worked in a workweek; and
More than half the employee’s total earnings in a representative period must consist of commissions on goods or services.
Employers must record and pay for all hours worked by employees including any time controlled by the employer, such as time spent “engaged to wait.” Where employees report to work at their scheduled time, the employer must begin counting that as work time. If the employees are told to wait until they are needed, and are not given a specific report-back time that is long enough to use for their own benefit, all of the waiting time is to be counted as hours worked.Deductions made from employees' wages for such items as cash or merchandise shortages, required uniforms, and tools of the trade are not legal to the extent that they reduce the wages below the statutory minimum wage or reduce the amount of overtime pay.Often, in retail businesses, salaried employees do not meet all the requirements specified by the regulations to be considered as exempt from overtime pay.
SECURITY GUARD/JANITOR/MAINTENANCE SERVICE INDUSTRY
The security guard service industry includes those firms that provide protection to firms or individuals. Normally, the guard obtains a State license which is portable from firm to firm. The guards cover a post daily and are usually paid on an hourly basis.
Security Guard Firms: The security guard cannot bear the cost of the uniform, gun, whistle, belt, and other employer/industry required tools if by purchasing them he/she receives less than the applicable minimum wage or such purchasing would cut into any overtime wages earned. This applies whether she\he buys the uniform directly or if it is sold to the employee by the firm.The cost of dry cleaning the uniform cannot be borne by the employee if in doing so he/she receives less than the minimum wage or the costs would cut into any overtime wages.Overtime must be calculated on a workweek basis, and the hours cannot be averaged over a two week period. The hours worked by guards in more than one post in the same week must be counted together for overtime purposes. Travel time between work sites must be treated as hours worked.
The maintenance service industry includes those firms that provide janitorial services in general. Normally, the firm provides the necessary materials to do the cleaning. The employees generally perform work at one or more locations during the work shift.
Industrial/Maintenance Service Firms: Every person who works must receive payment. If a man and wife team, and/or other family members work together, each member of the team must be carried on the payroll and each must receive proper compensation for their hours worked. Overtime must be paid after 40 hours of work in the workweek to all non-exempt employees regardless of the method of compensation, i.e., hourly, piece rate, task basis, salary, etc.
The hours worked by a janitor who works in more than one establishment must be counted together for overtime purposes.
ablishments which are not retail are: accounting firms, medical and dental clinics, construction companies, and radio and television stations.
STATE AND LOCAL GOVERNMENTS
State and local government employers consist of those entities that are defined as public agencies by the FLSA. “Public Agency” is defined to mean the Government of the United States; the government of a State or political subdivision thereof; any agency of the United States, a State, or a political subdivision of a State, or any interstate governmental agency. The public agency definition does not extend to private companies that are engaged in work activities normally performed by public employees. Section 3(s)(1)(C) of the FLSA covers all public agency employees of a State, a political subdivision of a State, or an interstate government agency.
Tipped employees are those who customarily and regularly receive more than $30 a month in tips. Tips actually received by tipped employees may be counted as wages for purposes of the FLSA, but the employer must pay at least $2.13 an hour in direct wages. For the employer to take a credit for tips earned by the employees, the employer must:
Inform each tipped employee about the tip credit allowance (including amount to be credited) before the credit is utilized.
Be able to show that the employee receives at least the minimum wage when direct wages and the tip credit allowance are combined.
Allow the tipped employee to retain all tips, whether or not the employer elects to take a tip credit for tips received, except to the extent the employee participates in a valid tip pooling arrangement.
If an employee’s tips combined with the employer’s direct wages of at least $2.13 an hour do not equal the minimum hourly wage ($7.25 an hour) the employer must make up the difference.
Many employers, e.g., limousine drivers, do not ensure that tips are sufficient to make up difference between employer’s direct wage obligation and the minimum wage; employee receives tips only – so the full minimum wage is owed; illegal deductions for walk-outs, breakages and cash register shortages; and invalid tip pools.
Failure to pay overtime on the full minimum wage; failure to pay overtime on the regular rate including all service charges, commissions, bonuses and other remuneration.
Many employers don’t pay the employees for the time they are waiting to do the tasks that employer wants. For example, limousine drivers waiting to pickup a customer, or time spent cleaning the car or workstations, etc.
TECHNOLOGISTS AND TECHNICIANS
Technologists and technicians, such as engineering technicians, ultrasound technologists, licensed veterinary technicians, avionics technicians and other similar employees are not exempt under Section 13(a)(1) from the minimum wage and overtime requirements of the FLSA because they generally do not meet the requirements for the learned professional exemption.
Technologists and technicians do not meet these requirements for the learned professional exemption because they do not work in occupations that have attained recognized professional status, which requires that an advanced specialized academic degree is a standard prerequisite for entrance into the profession.
WHOLESALE AND WAREHOUSE INDUSTRIES
The wholesale industry is characterized by the sale of goods for resale, rather than sales to the ultimate consumer. The warehouse industry includes central warehouses for a business enterprise, public warehouses, and storage establishments.There are some problems and misconceptions which Wage and Hour investigations commonly disclose in the wholesale and warehouse industry. These include:
The misapplication of the executiveor administrativeexemptions to non-exempt persons, such as clerical workers, working foremen, dispatchers, and inside salespersons.
The misconception that salaried employees need not be paid overtime.
Failure to pay employees for all hours suffered or permitted to work, including time spent taking inventory, completing paperwork, etc. beyond the normal schedule.
Giving compensatory time off in lieu of overtime pay.
Considering certain employees to be “contract labor.”