labor law lawyer

Are Call Center Employees Covered Under The Fair Labor Standards Act (FLSA) ?

What is a call center?

A call center is a central customer service operation where agents (often called customer care specialists or customer service representatives) handle telephone calls for their company or on behalf of a client. Clients may include mail-order catalog houses, telemarketing companies, computer product help desks, banks, financial services and insurance groups, transportation and freight handling firms, hotels, and information technology (IT) companies.

What are the requirements for a call center to be covered by the FLSA?

If the annual dollar volume of a call center’s sales or business is $500,000 or more, and the enterprise has at least two employees, all employees of the enterprise are covered by the FLSA on an “enterprise” basis. An enterprise may consist of one establishment, or it may be made up of multiple establishments.  Additionally, the FLSA also provides an “individual employee” basis of coverage. If the gross sales or volume of business done does not meet the requisite dollar volume of $500,000 annually, employees may still be covered if they individually engage in interstate commerce, the production of goods for interstate commerce, or in an occupation closely related and directly essential to such production. Interstate commerce includes such activities as transacting business via interstate telephone calls, the Internet or the U.S. Mail (such as handling insurance claims), ordering or receiving goods from an out-of-state supplier, or handling the accounting or bookkeeping for such activities.

Do call center employees qualify for overtime pay under the FLSA ?

Yes, in most cases. Covered nonexempt employees are entitled to be paid at least the federal minimum wage as well as overtime pay at time and one-half their regular rate of pay for all hours worked over 40 in a workweek. (This may not apply to certain executive, administrative, and professional employees, including computer professionals and outside sales people).

What are some typical problems that happen at call centers?

Hours Worked:  Covered employees must be paid for all hours worked in a workweek. In general, “hours worked” includes all time an employee must be on duty, or on the employer’s premises or at any other prescribed place of work, from the beginning of the first principal activity of the workday to the end of the last principal activity of the workday. Also included is any additional time the employee is allowed (i.e., suffered or permitted) to work. An example of the first principal activity of the day for agents/specialists/representatives working in call centers includes starting the computer to download work instructions, computer applications, and work-related emails.

Rest and Meal Periods: Rest periods of short duration, usually 20 minutes or less, are common in the industry (and promote employee efficiency), and must be counted as hours worked. Bona fide meal periods (typically 30 minutes or more) generally need not be compensated as work time as long as the employee is relieved from duty for the purpose of eating a regular meal.

Recordkeeping: A daily and weekly record of all hours worked, including time spent in pre-shift and post-shift job-related activities, must be kept.

Salaried Employees: A salary, by itself, does not exempt employees coverage of the FLSA. Whether employees are exempt from  minimum wage and/or overtime depends on their job duties and responsibilities as well as the way compensation is made. Sometimes, in call centers, salaried employees do not meet all the requirements specified by the regulations to be considered as exempt.

There have been some lawsuits brought recently to recover unpaid overtime pay and pay for work done off the clock. For example,  Sprint/United Managment Co. agreed to a $9 million settlement for overtime pay and APAC Customer Services, Inc. agreed to a $4 million payment for overtime to cover time spent logging into the computer system, performing clerical duties and reviewing company notices prior to logging into the company’s timekeeping system.

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8 Telemarketing Employees in Tampa Who Were Misclassified are Awarded $34,235 in Back Pay

If you think you may have a claim or would just like more information about wage labor laws please call  (954) 946-8130 or  submit the confidential “contact us” form below which will arrive at our law offices instantly.    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 as well as many other counties throughout Florida.

US Labor Department finds Knoxville, Tenn., misclassfication, security company owes $62,000 in back wages to 34 guards misclassified as independent contractors

Jan. 9, 2012

Custom Security Solutions Inc. has agreed to pay $62,038 in back wages to 34 security guards after an investigation by the U.S. Department of Labor’s Wage and Hour Division found the employees were improperly classified as independent contractors and consequently denied minimum wage and overtime wages due under the Fair Labor Standards Act.

Custom Security Solutions provides guard services for Premium Coal Co. at its mining sites and washing and loadout plants in Anderson, Scott and Campbell counties.

“Increasingly, employers are categorizing their employees as independent contractors to avoid paying them in compliance with the FLSA, as well as other federal, state and local statutes,” said Sandra Sanders, director of the Wage and Hour Division’s Nashville District Office. “Misclassification costs taxpayers millions of dollars each year in uncollected employment taxes, and gives unscrupulous employers an unfair advantage. The Wage and Hour Division is vigorously pursuing corrective action in those situations when workers are, in fact, employees, to ensure that they are paid required wages and level the playing field for employers who play by the rules.”

The division’s investigators determined that the 34 employees were paid a “straight time” rate for all hours worked instead of time and one-half their hourly rates for hours over 40, as required by the FLSA. This practice resulted in the employees being owed $61,937 in overtime back wages. Additionally, one of the employees was not paid the minimum wage of $7.25 per hour for all hours worked, and is also owed $101 in minimum wage payments.

In addition to paying the back wages, the company agreed to maintain future compliance by ensuring employees are properly classified and compensated for all hours worked in accordance with the FLSA.

The misclassification of employees as independent contractors is an alarming trend, particularly in industries that often employ low-wage, vulnerable workers and in which the Wage and Hour Division historically has found significant wage violations. The practice is a serious threat both to employees entitled to good and safe jobs, as well as to employers who obey the law. Misclassified employees often are deprived of overtime and minimum wages, and are forced to pay taxes that their employers are legally obligated to pay. Misclassification also creates a competitive disadvantage for employers who comply with the law.

Under the FLSA, an employment relationship must be distinguished from a strictly contractual one. An employee as distinguished from a person who is engaged in a business of his or her own  is one who, as a matter of economic reality, follows the usual path of an employee and is dependent on the business that he or she serves. For more information, visit http://www.dol.gov/whd/regs/compliance/whdfs13.htm.

The FLSA requires that covered employees be paid at least the federal minimum wage of $7.25 per hour for all hours worked, plus time and one-half their hourly rates of pay for hours worked beyond 40 per week. Additionally, accurate records of employees’ wages, hours and other conditions of employment must be maintained.

Our firm will prosecute class  and collective actions on behalf of aggrieved employees. We will undertake any litigation arising from this investigation on a contingent fee basis. If a lawsuit is filed as a result of this investigation, we will only seek payment of any fees from recovery generated by the lawsuit. This means any fee we receive will be paid by the defendant or out of any settlement or judgment recovered.  Likewise, all costs will be advanced by us. If an action is filed and not successful, you would not be responsible for any of our fees or costs. If you wish to discuss this investigation and any potential legal options you may have, or if you have any questions please contact our law office.

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 “contact us” form below which will arrive at our law offices instantly. You may email us too: rose (at) roserobbins.com   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

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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.