Wage and Hour Division

Nursing home to pay $54,000 in back wages to 66 workers for “meal breaks” violations

King’s Daughters and Sons Home

WAGE AND HOUR DIVISION (WHD), U.S. DEPARTMENT OF LABOR

Release Number: 12-98-ATL (026)

January 30, 2012

In January 2012, King’s Daughters and Sons Home, located in Bartlett, Tenn.,   agreed to pay $54,081 in back wages to 66 current and former employees following a U.S. Department of Labor investigation that found violations of the Fair Labor Standards Act’s overtime provisions. The Bartlett nursing home provides residential services to individuals with physical disabilities.

The Wage and Hour Division of the DOL determined that even though employees had worked through their meal breaks the employer had deducted 30 minutes per day from their work hours for those periods. This failure to pay for all hours worked resulted in employees not receiving one and one-half times their regular rates of pay for hours beyond 40 in a week, as required by the FLSA.

The FLSA requires that covered employees be paid at least the federal minimum wage of $7.25 for all hours worked, plus time and one-half their regular rates of pay, including commissions, bonuses and incentive pay, for hours worked beyond 40 per week. Employers must also maintain accurate time and payroll records.

If you are a nursing home worker  and have been the victim of  wage theft by your employer you should consult with an attorney to see if you have any claims.

This post is intended to provide you with information about overtime and wage cases filed throughout the country by other law firms and the government. It serves to give you an idea of the types of issues which are currently being litigated by employment lawyers as well as those which have been “settled.”

As a courtesy to you, we are providing the court name, case number and date filed to facilitate your search for it on the federal PACER website. Current information regarding case status, parties and attorneys is available on PACER to anyone who opens an account with them.

Please also note that some cases we report on were initiated by the Department of Labor and then settled  without having been filed in Federal Court and thus will not be available on the PACER website. For these cases we generally provide a brief summary of the findings and results.

Please feel free to complete the form below for submission to our law firm if you would like more information about your possible employment claim.  A representative will review it and  contact you. Please allow one  business day for someone to contact you and if you do not hear back from us then  it is possible that we did not receive it. This is a FREE consultation and you will not be charged for this call. Also please be advised that, merely by submitting this form, no Attorney-Client relationship is formed with the law firm.  The ONLY way that an Attorney-Client relationship with  the Law Office of Rose H. Robbins is formed is by specifically written  agreement signed by you and the Law Office of Rose H. Robbins.  You must provide your name,  home  or cell phone number and your zip code and all remaining fields are optional.

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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.

Car Wash is Sued For Alleged Overtime Wage Violations by City of San Francisco

Posted by FLWageLawyers.com on October 12, 2011

San Francisco is suing a car wash company, Tower Car Wash, for millions of dollars in back wages, penalties and interest because it allegedly failed to pay workers pursuant to wage laws. The suit claims that the company had employees report for work before they were allowed to begin work. This was done in violation of state and local wage laws. Further, employees were kept in a waiting area until the car wash decided they were needed. However, these employees were not paid for that time.  Read newspaper article here. http://bit.ly/qsWylT

This car wash case addresses the question of what constitutes compensable time under the FLSA (“Act”)?

The Act requires that employees must receive at least the minimum wage and may not be employed for more than 40 hours in a week without receiving at least one and one-half times their regular rates of pay for the overtime hours. The amount employees should receive cannot be determined without knowing the number of hours worked.

How is  “Employ” defined?

By statutory definition the term “employ” includes “to suffer or permit to work.” The workweek ordinarily includes all time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed work place. “Workday”, in general, means the period between the time on any particular day when such employee commences his/her “principal activity” and the time on that day at which he/she ceases such principal activity or activities. The workday may therefore be longer than the employee’s scheduled shift, hours, tour of duty, or production line time.

What is the Application of the Principles?

Employees “Suffered or Permitted” to work: Work not requested but suffered or permitted to be performed is work time that must be paid for by the employer. For example, an employee may voluntarily continue to work at the end of the shift to finish an assigned task or to correct errors. The reason is immaterial. The hours are work time and are compensable.

Waiting Time: Whether waiting time is hours worked under the Act depends upon the particular circumstances. Generally, the facts may show that the employee was engaged to wait (which is work time) or the facts may show that the employee was waiting to be engaged (which is not work time). For example, a secretary who reads a book while waiting for dictation or a fireman who plays checkers while waiting for an alarm is working during such periods of inactivity. These employees have been “engaged to wait.”

On-Call Time: An employee who is required to remain on call on the employer’s premises is working while “on call.” An employee who is required to remain on call at home, or who is allowed to leave a message where he/she can be reached, is not working (in most cases) while on call. Additional constraints on the employee’s freedom could require this time to be compensated.

Rest and Meal Periods: Rest periods of short duration, usually 20 minutes or less, are common in industry (and promote the efficiency of the employee) and are customarily paid for as working time. These short periods must be counted as hours worked. Unauthorized extensions of authorized work breaks need not be counted as hours worked when the employer has expressly and unambiguously communicated to the employee that the authorized break may only last for a specific length of time, that any extension of the break is contrary to the employer’s rules, and any extension of the break will be punished. Bona fide meal periods (typically 30 minutes or more) generally need not be compensated as work time. The employee must be completely relieved from duty for the purpose of eating regular meals. The employee is not relieved if he/she is required to perform any duties, whether active or inactive, while eating.

Sleeping Time and Certain Other Activities: An employee who is required to be on duty for less than 24 hours is working even though he/she is permitted to sleep or engage in other personal activities when not busy. An employee required to be on duty for 24 hours or more may agree with the employer to exclude from hours worked bona fide regularly scheduled sleeping periods of not more than 8 hours, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted night’s sleep. No reduction is permitted unless at least 5 hours of sleep is taken.

Lectures, Meetings and Training Programs: Attendance at lectures, meetings, training programs and similar activities need not be counted as working time only if four criteria are met, namely: it is outside normal hours, it is voluntary, not job related, and no other work is concurrently performed.

Travel Time: The principles which apply in determining whether time spent in travel is compensable time depends upon the kind of travel involved.

Home to Work Travel: An employee who travels from home before the regular workday and returns to his/her home at the end of the workday is engaged in ordinary home to work travel, which is not work time.

Home to Work on a Special One Day Assignment in Another City: An employee who regularly works at a fixed location in one city is given a special one day assignment in another city and returns home the same day. The time spent in traveling to and returning from the other city is work time, except that the employer may deduct/not count that time the employee would normally spend commuting to the regular work site.

Travel That is All in a Day’s Work: Time spent by an employee in travel as part of their principal activity, such as travel from job site to job site during the workday, is work time and must be counted as hours worked.

Travel Away from Home Community: Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is clearly work time when it cuts across the employee’s workday. The time is not only hours worked on regular working days during normal working hours but also during corresponding hours on nonworking days. As an enforcement policy the Division will not consider as work time that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile.

What are some typical problems?

Problems arise when employers fail to recognize and count certain hours worked as compensable hours. For example, an employee who remains at his/her desk while eating lunch and regularly answers the telephone and refers callers is working. This time must be counted and paid as compensable hours worked because the employee has not been completely relieved from duty.

If you or someone you know is not being fully compensated for all the time you work, or your employer has improperly calculated your hours worked, then you may be entitled to overtime and additional compensation. At the Law Offices of Rose H. Robbins we handle employment disputes.  Our office focuses on disputes dealing with overtime claims and wage and hour law violations, including violations resulting from improper wage and overtime calculations. We represent employees in wage and hour violations throughout Florida.

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 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.