Salary Alone Does Not Determine Exemption From Overtime Pay

Neither a job title or salary alone determines exempt status from overtime pay. The Fair Labor Standards Act (“FLSA”) requires that most employees in the United States be paid at least the federal minimum wage for all hours worked and overtime pay at time and one-half the regular rate of pay for all hours worked over 40 hours in a workweek.

Call attorney Rose H. Robbins at (954) 946-8130 for a FREE  telephone consultation about your claim for minimum wage or unpaid overtime wage violations.

When does pay for compensable time become mandatory? For “white collar” employees, the FLSA does provide an exemption from both minimum wage and overtime pay for bona fide executive, administrative, professional and outside sales employee as well as certain computer employees.  To qualify for this exemption, employees generally must meet certain tests based on their job duties and be paid on a salary basis at not less than $455 per week.   The application of these tests to specific cases has been developed by the cases fought out in Courts. A Florida lawyer experienced in wage and hour litigation should analyze your particular job situation to find out if your FLSA rights have been violated and you are owed minimum or overtime wages.

However, these  “white collar” exemptions from overtime and minimum wages do not apply to manual laborers or other “blue collar” workers who perform work involving repetitive operations with their hands, physical skill and energy.  FLSA-covered, non-management employees in production, maintenance, construction and similar occupations such as carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, construction workers and laborers are entitled to minimum wage and overtime premium pay under the FLSA, and generally are not exempt no matter how highly paid they might be.

Call attorney Rose H. Robbins at (954) 946-8130 for a FREE  telephone consultation about your claim for minimum wage or unpaid overtime wage violations. Or you can complete the simple form below for confidential submission to our office.  Please be advised that by merely submitting this form, no Attorney-Client relationship is formed with this law firm.   You must provide your name,  home or cell phone number, your email address and your zip code in the form.  We serve the following counties: Broward, Highlands, Indian River, Martin, Miami-Dade, Monroe, Okeechobee, Palm Beach, and St. Lucie

Multiple Individuals Found to be Employers in FLSA Case Against Construction Companies

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On February 12, 2013, the U.S. District Court for the Eastern District of New York (Leal v Masonry Serv. Inc ., E.D.N.Y., No 1:12-cv-00588, February 12, 2013) held that a construction worker sufficiently alleged that multiple individuals were his “employers” under the FLSA because each had operational control over his work. The Court stated,

“To determine whether an individual defendant is an employer within the meaning of the FLSA, “the overarching concern is whether the alleged employer possessed the power to control the workers in question . . . with an eye to the ‘economic reality’ presented by the facts of each case.” Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 139 (2d Cir. 1999) (citations omitted). Under the “economic reality” test, the relevant factors include whether the alleged employer: (1) had the power to hire and fire the employees; (2) supervised and controlled employee work schedules or conditions of employment; (3) determined the rate and method of payment; and (4) maintained employment records. Id. However, these factors are not exclusive. Indeed, under the “economic reality” test, which encompasses the totality of the circumstances, “any relevant evidence may be examined so as to avoid having the test confined to a narrow legalistic definition.” Id. Here, Plaintiff has alleged that the Moving Defendants, in their capacity as owners and directors of construction businesses operating within this district, had the power to hire and terminate employees, control work schedules and conditions of employment, and set wages. Plaintiff’s allegations of operational control, considered together, are sufficient to allege the Moving Defendants’ status as Plaintiff’s employer, as that term is defined under the FLSA and NYLL.”

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John and Anthony Cimino, owners of LTCI, Limited, a theatre refurbishing construction company, were sentenced for unlawful employment of illegal aliens and tax evasion.

Syracuse, NY— United States Attorney, Richard S. Hartunian, announced that John Cimino, age 55, of Doylestown, PA, Vice-President of LTCI, Limited, was sentenced yesterday in United States District Court to six months home confinement, twelve weekends in a residential reentry center, and three years of supervised release for tax evasion and conspiracy to conceal, harbor, and shield illegal aliens from detection for commercial advantage and private financial gain. Anthony Cimino, age 57, of West New Hope, PA, President of LTCI, Limited, was sentenced to six months home confinement and three years supervised release for conspiracy to conceal, harbor, and shield illegal aliens from detection for commercial advantage and private financial gain. “Homeland Security Investigations is committed to holding businesses accountable when they knowingly hire an illegal workforce,” said Nick DiNicola, assistant special agent in charge of HSI Albany, NY. “Employers who willfully violate our nation’s hiring laws gain an unfair economic advantage over their law abiding competitors. Our goal is to protect job opportunities for the nation’s legal workers and level the playing field for those businesses that play by the rules.”

In April 2008, agents from the U.S. Immigration and Custom’s Enforcement (ICE), Homeland Security Investigations, discovered that LTCI, Limited, a Philadelphia based construction company specializing in the refurbishment of movie theaters, was employing undocumented illegal aliens at their worksite located at the Shoppingtown Mall movie theaters in DeWitt, NY. The investigation revealed that LTCI had hired and employed eight illegal aliens at this site.

A further investigation conducted by agents from the Internal Revenue Service-Criminal Investigation Division (IRS-CID), revealed that during 2007 and 2008, LTCI’s Vice President, John Cimino, who was in charge of the company’s payroll, evaded federal tax owed on the Employer’s Quarterly Federal Tax Return (Form 941) by paying his employees (both legal and illegal) a majority of their overtime wages “off the books.”

In addition to home confinement and supervised release, United States District Court Judge David N. Hurd imposed a fine of $20,000 on each defendant. The Ciminos forfeited $223,000 to the United States as proceeds from the unlawful employment of the illegal aliens. Additionally, the Ciminos paid $622,492 for under-reported payroll taxes owed, which included $225,000 in penalties.