DOL

Ninth Circuit rules that state social workers are not “learned professionals” exempt from overtime pay

On September 9, the Ninth Circuit ruled that Washington State social workers are not “learned professionals” exempt from FLSA overtime pay requirements, despite “rigorous” educational and training requirements for the positions.      Candidates for the position of Social Worker 2 were required to have a bachelor’s degree in social services, human services, behavioral sciences, or a related field, as well as eighteen months as a Social Worker 1 or two years of equivalent work experience. Candidates for Social Worker 3 were required to have additional experience beyond that of the Social Worker 2 position.  Additionally, new employees in those positions had to complete six more weeks of training once they are hired.

In siding with the DOL, the Ninth Circuit relied on two DOL opinion letters, which had found that a position requiring social workers to have a master’s degree in certain related fields met the criteria for exemption, but that a position requiring a bachelor’s degree did not, because an undergraduate degree did not rise to the level of specialized academic training required by the regulations to trigger the exemption.  The court noted that the education requirements for the social worker positions were not sufficiently specialized to qualify for the exemption.  On-the-job training and related work experience cannot be substituted for the requisite specialized academic training.

FLSA exemptions are narrowly construed against employers. Employers must therefore be very careful when analyzing whether to apply any overtime exemption

You may contact the Law Offices of Rose H. Robbins for a free consultation to see if you have a case for unpaid overtime or minimum wages by calling (954) 946-8130 or by filling out the confidential form below. If our office decides to accept your case and we enter into a written, signed retainer agreement you will not have to pay anything unless we win your case. Appointments are available at various locations in Palm Beach, Broward and Miami-Dade Counties.

Accounting Employer fails to dot his i’s and owes fired H1B worker $165K+ in back wages

The OALJ  Judge’s decision set forth the following:

“Ganze & Co. (Ganze) made a labor condition application with two inherent components, and wants to ignore half of what it did. Its primary focus was to have a worker. Because Limanseto, the Prosecuting Party, never did its work during the application‘s three year term, it bridles at the suggestion it should pay him a dime. But then there is the immigration half of the story, the half that requires Ganze to pay, with no offsets.”

“The H-1B visa didn‘t make Limanseto an indentured servant. Both he and Ganze remained free to end the relationship that served as the basis for his immigration status; when it ended, both had to deal with the consequences. The parties agree, and I find, that about six weeks before the October 1, 2008 start date its labor condition application had proposed—on August 14, 2008—Ganze ―ended the employment relationship. That part of Ganze‘s proof may be sufficient to end the employment under state law, but won‘t suffice to end its federal liability.”

“The Department also observed that the employer, at any time, may terminate the employment of the worker, notify INS, and pay the worker‘s return transportation, thereby ceasing its obligations to pay for non-productive time under the H–1B program.”

The court found that even the employer fired the employee,   because the employer failed to inform INS of the termination and did not pay the H1B employee’s fare back to the home country, his obligation to pay wages did not terminate at the time of firing. The Court also ordered the employer to pay back the original cost of obtaining the H1B visa to the fired employee.

The court ordered:

It is ordered that within 30 days:

1. Ganze must pay the Administrator for distribution to Limanseto back wages from October 1, 2008 at the rate of $25.30 per hour for 40 hours per week, payable monthly, for 154.5774 weeks;

2. Ganze must pay the Administrator for distribution to Limanseto $1,500 to reimburse Limanseto for what he paid in March 2008 as legal fees associated with preparing the labor condition application and form I-129Petition for a Nonimmigrant Worker;

3. Ganze must pay pre-judgment interest and post-judgment interest on these amounts at the Federal Short Term Interest rate plus 3%, as specified in 26 U.S.C. § 6621, compounded quarterly.

This blog is sponsored by the Law Office of Rose H. Robbins, established in 1987 and located in Boca Raton, Florida, which serves clients all over Florida.   The firm concentrates in the following areas: Employment Law &  Immigration. Rose H. Robbins is fluent in Spanish and French.  Tel: (954) 946-8130.  Email: rose (at) roserobbins.com

http://www.FLWageLawyers.wordpress.com

Office:  2255 Glades Road,  Suite 324A,    Boca Raton, Florida 33431

The Law Office of Rose H. Robbins, Lawyers and Attorneys, serve all of Florida including South Florida, North Florida, Miami-Dade County, Broward County, and Palm Beach County, as well as the cities of Hollywood, Fort Lauderdale, Boca Raton, Pompano Beach, Lighthouse Point, Deerfield Beach, Pembroke Pines, Miramar, Margate, Plantation, Aventura, Miami Beach, Hialeah, Coral Springs, Tampa, Jacksonville, Orlando, Cooper City and Coconut Creek in unpaid overtime, minimum wage, wage and hour, discrimination claims and immigration matters. Our goal is to level the playing field for employers who play by the rules.

You may contact the Law Offices of Rose H. Robbins for a free consultation to see if you have a case for unpaid overtime or minimum wages by calling (954) 946-8130 or by filling out the confidential form below. If our office decides to accept your case and we enter into a written, signed retainer agreement you will not have to pay anything unless we win your case. Appointments are available at various locations in Palm Beach, Broward and Miami-Dade Counties.

$18,496 paid to 42 H2B visa workers of Vanderbilt Landescaping, LLC for wage violations

Vanderbilt Landscaping, LLC recently agreed to pay $18,496 to 42 workers after a WHD investigation found workers were not compensated for visa and transportation costs that reduced their wages below the federal minimum wage. The company also failed to compensate workers for all hours spent on job duties, resulting in them not receiving overtime pay when hours worked exceeded 40 hours in a week. Back wages in that case have been paid to all workers who could be located.

The H-2B program permits employers to temporarily hire nonimmigrants to perform nonagricultural labor or services in the United States. The employment must be of a temporary nature for a limited period of time, such as a one-time occurrence or for seasonal, peak load and intermittent needs. The H-2B program requires the employer to attest to the Department of Labor that it will offer a wage that equals or exceeds the highest of the following: the prevailing wage, the applicable federal minimum wage, the state minimum wage or the local minimum wage. That wage must be paid to the H-2B nonimmigrant worker for the occupation in the area of intended employment during the entire period of the approved H-2B labor certification. The H-2B program also establishes certain recruitment and displacement standards in order to protect similarly employed U.S. workers.

The Fair Labor Standards Act requires that covered employees be paid at least the federal minimum wage of $7.25 per hour as well as time and one-half their regular hourly rates for every hour they work beyond 40 per week. The law also requires employers to maintain accurate records of employees’ wages, hours and other conditions of employment, and prohibits employers from retaliating against employees who exercise their rights under the law.

This blog is sponsored by the Law Office of Rose H. Robbins, established in 1987 and located in Boca Raton, Florida, which serves clients all over Florida.   The firm concentrates in the following areas: Employment Law &  Immigration. Rose H. Robbins is fluent in Spanish and French.  Tel: (954) 946-8130.  Email: rose (at) roserobbins.com

http://www.FLWageLawyers.wordpress.com

Office:  2255 Glades Road,  Suite 324A,    Boca Raton, Florida 33431

The Law Office of Rose H. Robbins, Lawyers and Attorneys, serve all of Florida including South Florida, North Florida, Miami-Dade County, Broward County, and Palm Beach County, as well as the cities of Hollywood, Fort Lauderdale, Boca Raton, Pompano Beach, Lighthouse Point, Deerfield Beach, Pembroke Pines, Miramar, Margate, Plantation, Aventura, Miami Beach, Hialeah, Coral Springs, Tampa, Jacksonville, Orlando, Cooper City and Coconut Creek in unpaid overtime, minimum wage, wage and hour, discrimination claims and immigration matters. Our goal is to level the playing field for employers who play by the rules.

You may contact the Law Offices of Rose H. Robbins for a free consultation to see if you have a case for unpaid overtime or minimum wages by calling (954) 946-8130 or by filling out the confidential form below. If our office decides to accept your case and we enter into a written, signed retainer agreement you will not have to pay anything unless we win your case. Appointments are available at various locations in Palm Beach, Broward and Miami-Dade Counties.

Please use the form below to contact the Law Offices of Rose H. Robbins for a free evaluation of your employment concerns or call (954) 946-8130.