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.

2 Jacksonville, Fla., restaurants and owners ordered to pay more than $934,000 to 30 workers

Two La Nopalera restaurants in Jacksonville and their owners have been ordered to pay 30 employees $934,425 in back wages and liquidated damages under the terms of consent judgments. The agreements resolve a U.S. Department of Labor lawsuit based on an investigation by its Wage and Hour Division that alleged violations of the Fair Labor Standards Act’s minimum wage, overtime pay and record-keeping provisions.

Investigators found that kitchen employees were improperly classified as exempt from FLSA overtime pay provisions and consequently paid salaries that did not include compensation for hours worked over 40 in a week. Additionally, every week, tipped employees would receive their tips plus a paycheck that together equaled the minimum wage; however, management required the employees to sign and return the paychecks, and would then cash the checks and put the money back into the restaurant. Through this process, while it appeared that the owners were paying wages, the employees actually were allowed to keep only their tips. Finally, the employers did not maintain accurate records of the hours worked by employees.

The employees will receive $584,425 in back wages and an additional $350,000 in liquidated damages. The restaurants will be allowed to make the payments in installments over 13 months.

The FLSA requires that covered employees be paid at least the federal minimum wage for all hours worked, as well as one and one-half times their regular rates of pay for hours worked over 40 per week. If certain conditions are met, the FLSA permits an employer to take a tip credit toward its minimum wage obligation for tipped employees. The employer must pay tipped employees a cash wage of $2.13 per hour or the state mandated cash wage, whichever is higher; all tips must be retained by the employee except for contributions to a valid tip pooling arrangement; employees must be informed of the tip credit provision; and the amount of tips plus cash wages must equal the federal minimum wage, currently $7.25 per hour. Additionally, the law requires that accurate records of employees’ wages, hours and other conditions of employment be maintained.

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.

USCIS Reminder: Certain Fees May Not Be Collected From H-2A and H-2B Workers

As the traditional harvest season approaches, USCIS reminds petitioners that certain fees may not be collected from H-2A and   H-2B workers, according to 8 C.F.R. § 214.2(h)(5)(xi)(A) and § 214.2(h)(6)(i)(B). Delays in adjudicating these petitions may affect employers’ ability to place workers in time-sensitive jobs. To avoid delays, USCIS urges petitioners to submit sufficient information regarding their recruitment efforts and the nature of fees collected from H-2A and H-2B workers. USCIS also recommend petitioners refer to U.S. Department of Labor (DOL) guidelines on employers’ obligation to avoid passing costs to H-2A workers.

To facilitate the processing of Form I-129, Petition for a Nonimmigrant Worker, it is important that petitioners properly complete the form and answer questions 7, 8 and 9 of Section 3 of the H Classification Supplement to Form I-129. These questions ask about petitioners’ recruitment efforts and whether a prospective or current worker has paid job placement fees or similar compensation as a condition of employment.

Fees that workers may not pay include, but are not limited to, government-mandated fees that are prohibited under DOL rules, petition fees, attorney fees, recruitment costs and any fees that are conditions of employment.

USCIS determines whether fees are prohibited based on the totality of the circumstances. Therefore, we suggest, but do not require, that petitioners also consider including a statement or other documentation to support their answers to the questions in the H Classification Supplement.

USCIS considers the following, among other factors, in determining whether H-2A or H-2B workers have paid prohibited fees:

* Whether you collected, or intend to collect, directly or indirectly, any fee or compensation from any beneficiary of the H-2A or H-2B petition as a condition of employment

* Whether you entered, or intend to enter, into an agreement to collect, directly or indirectly, any fee or other compensation from any beneficiary of the H-2A or H-2B petition as a condition of employment

* Whether, to the best of your knowledge, the recruiter, facilitator or similar employment service that you used collected, or intends to collect, directly or indirectly, any fee or other compensation from any beneficiary of the H-2A or H-2B petition, as a condition of employment; and

* Whether, to the best of your knowledge, the recruiter, facilitator or similar employment service that you used entered, or intends to enter, into any agreement to collect, directly or indirectly, any fee or other compensation from any beneficiary of the H-2A or H-2B petition as a condition of employment.

Petitioners may demonstrate knowledge of the practices of their recruiter, facilitator or similar employment service by indicating that they made reasonable inquiries about the fee collections from the H-2A or H-2B workers.  If USCIS determines that the petitioner or employer knows or had reason to know that H-2A or H-2B workers paid any fees or other compensation as a condition of employment, the petition may be denied or revoked.

The Fair Labor Standards Act also applies to these recruitment fees.

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.