Posts Tagged ‘FLSA’

The U.S. Department of Labor has recovered $71,809 in minimum wage and overtime back wages for 48 workers jointly employed by GHM Wentworth LLC, doing business as Wentworth by the Sea Hotel in New Castle, and contractor Eco-Clean New England Inc., doing business as The Cleaning Crew in Londonderry. Wentworth contracted its housekeeping and kitchen work through Eco-Clean; consequently, the companies were jointly responsible for ensuring compliance with the Fair Labor Standards Act.

An investigation by the Labor Department’s Wage and Hour Division found that employees, many of whom traveled more than 120 miles daily between the Boston area and New Castle, were not properly compensated. Employees were paid “straight time” wages rather than time and one-half their regular rates of pay for hours worked in excess of 40 during a single week, as required by the FLSA’s overtime provisions. Additionally, minimum wage violations resulted when the employers failed to provide wages owed from several payrolls and when some resort employees were not compensated for all hours of their work.

GHM Wentworth Inc. has agreed to pay all back wages due the affected employees and to maintain future compliance with the FLSA. The company also has committed to ensuring full compliance by all contractors with which it has a joint employment relationship. Specifically, the company will require Eco-Clean to submit weekly payroll documents to ensure that the jointly employed workers are being paid proper wages for all hours worked.

The FLSA 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.

If you believe you are owed for unpaid overtime or wages you should contact the U.S. Department of Labor or a law firm that handles wage and hour litigation. Feel free to contact Scott Behren and the Behren Law Firm for a free consultation.

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Under the Fair Labor Standards Act, you are entitled to be paid time and a half for each hour worked over 40 in a given week. When computing these hours, the employer should normally include off the clock training.

Following an investigation by the U.S. Department of Labor’s Wage and Hour Division, Tulsa-based United States Beef Corp., doing business as Arby’s, has agreed to pay $56,838 in back wages to 759 current and former hourly paid managers in Arkansas, Illinois, Kansas, Missouri and Oklahoma.

Investigators found that at 255 Arby’s locations in the five states, bonuses paid to managers were not included in regular rates of pay when overtime was computed. The Fair Labor Standards Act requires that covered employees be paid time and one-half their regular rates, including commissions, bonuses and incentive pay, for hours worked beyond 40 per week.

Additionally, managers in training at an Arby’s in Wichita, Kan., were required to review training material outside of their work hours and not properly compensated for this time. Under the FLSA, employees must receive at least the federal minimum wage of $7.25 for all hours worked.

“We are pleased that this company has agreed to change its practices to comply with the Fair Labor Standards Act,” said Cynthia Watson, regional administrator for the department’s Wage and Hour Division in the Southwest. “The Wage and Hour Division actively pursues systemic violations by multi-state employers wherever employees are affected by bad practices.”

If you believe you have not been paid properly by your employer speak to the U.S. Department of Labor or an attorney that specializes in wage and hour law. Feel free to call Scott Behren and the Behren Law Firm for a free consultation.

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In the past I have blogged about recent attempts by employers to misclassify employees as independent contractors in violation of Federal Law. Many employers will misclassify employees to avoid: (1) having to pay workers compensation; (2) having to pay unemployment taxes; (3) having to pay payroll taxes; (4) having to pay overtime and (5) having to comply with many other federal and state laws that prohibit discrimination. IN MOST CASES EVEN IF YOUR EMPLOYER SAYS YOU ARE AN INDEPENDENT CONTRACTOR—-YOU LEGALLY ARE NOT ONE!!! Speak to an attorney or the Department of Labor to discuss this issue.

The U.S. Department of Labor has been cracking down on those employers who improperly misclassify employees to avoid overtime pay. A Tulsa-based firm that specializes in drilling petroleum wells has been drilled by the U.S. Department of Labor. For instance the DOL just fined Latshaw Drillling Company.

An investigation by the Labor Department’s Wage and Hour Division found that Latshaw Drilling Company denied overtime for several dozen workers who had been misclassified as independent contractors.

Cynthia Watson a regional administrator for the Labor Department’s Wage and Hour division said: “Latshaw Drilling took advantage of vulnerable workers by misclassifying them as independent contractors rather than regular employees. As a result, they were denied rightful wages and legal protections that are guaranteed under federal law. This practice is illegal and unacceptable.”

The workers were paid straight time instead of time and a-half for hours worked over 40 in a week, as required in the Fair Labor Standards Act.
Some employees worked up to 72 hours in a week. 34 painters and sand blasters recovered more than $70,000 in back wages.
Latshaw Drilling has agreed to maintain future compliance by ensuring that all employees are properly classified.

If you believe you have been improperly classified as an independent contractor by your employer, go to the U.S. Department of Labor or an attorney that specializes in wage and hour laws. Feel free to contact Scott Behren and the Behren Law Firm for a consultation.

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I have previously blogged about discrimination against service dogs as a violation of the ADA and state statutes.

In many states, condo associations are giving hard times to disabled persons who have service dogs, especially where the association has no pet rules. Florida Statutes 413.08.  Under the Florida Statutes, at subsection (2) An individual with a disability is entitled to full and equal accommodations, advantages, facilities, and privileges in all public accommodations.  Moreover, under subsection (3) An individual with a disability has the right to be accompanied by a service animal in all areas of a public accommodation that the public or customers are normally permitted to occupy.  It is interesting to note also that the statute mandates that an association may not charge a surcharge or pet deposit for a service dog even if normally charged for a pet.

However now there is a new wrinkle. What if a person’s service dog is one of the breeds considered to be a danger to the public? City officials in Denver and in the neighboring suburb of Aurora are being sued over their enforcement of dog breed bans. The suit claims the bans violate the Americans with Disabilities Act.

Aurora resident and Vietnam veteran Allen Grider is one of the litigants. He suffers from post-traumatic stress disorder and claims his 8-year-old trained service dog, Precious, is essential in helping him cope with his disability. In 2009, Aurora officials seized Precious under the city’s 3-year-old pit bull ban. Though city officials eventually returned Precious to Grider, the reunion came with restrictions, including muzzling the dog in public. Grider and his lawyer, Jennifer Reba Edwards, say that the restrictions make it impossible for Precious to work as a service dog, and that they violate the ADA. The lawsuit is still ongoing, but I will be sure to keep you posted on the final result.

If you are having problems due to your service dog or are otherwise being discriminated against due to your disability, feel free to call Scott M. Behren and the Behren Law Firm for a free consultation on this matter.

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I have previously blogged that alcoholism is considered a disability under the Americans with Disabilities Act in many circumstances. Old Dominion Freight Line has now found that out based upon an EEOC lawsuit filed against it.

The U.S. Equal Employment Opportunity Commission filed a lawsuit this week arguing that Old Dominion Freight Line discriminated against Charles Grams by stripping him of his position and offering him a demotion even if he completed a substance abuse counseling program.

The EEOC says alcoholism is a recognized disability under the ADA and that the company violated the law with its policy that bans any driver who admits alcohol abuse from driving again. The EEOC wants the company to reinstate Grams and another affected driver to their previous positions and provide them with back pay, compensatory and punitive damages and compensation for lost benefits. The EEOC is also seeking to block the company’s alcohol-related policy.

According to the EEOC’s suit, Grams, who had been with Old Dominion for five years without incident, informed the company in June 2009 that he believed he had an alcohol problem. The company suspended him from his driving position, which paid him nearly $22 per hour, including benefits. In compliance with U.S. Transportation Department regulations, Grams met with a substance abuse professional who notified the company that Grams would participate in an outpatient treatment program and could return to work. But Old Dominion told Grams that he wouldn’t be allowed to drive again for the company and instead offered him a part-time position as a dock worker as soon as it became available. The position paid $12 per hour without benefits, the lawsuit alleges.

The EEOC contends that the company’s actions deprived Grams and other affected drivers of “equal employment opportunities and otherwise adversely affect their status as employees, in violation of the ADA.”
“Grams is a qualified individual with a disability under ADA … who can perform the essential functions of a driving position,” the suit says, adding that Grams and other employees wouldn’t need treatment to perform non-driving duties.

If you believe you have been subjected to discrimination in the workplace or had your job terminated based upon a disability, including alcoholism or substance abuse, feel free to call Scott Behren and the Behren Law Firm for a free consultation about your legal rights.

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Dustin Hoffman in the Graduate was told just one word, “Plastics.” However, plastics did not appear to be a good business decision for several employees of plastic company Promens USA.

Promens USA Inc. has agreed to pay $225,000 to four women to settle a sexual discrimination and harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission, the EEOC has announced.

The women worked at the former Bonar Plastics rotational molding plant in West Chicago, Ill., that was acquired by Promens hf, based in Kópavogur, Iceland, in 2005.

EEOC said the violations occurred during the five years that Promens owned the factory.

The women, who were employed in the finishing department in West Chicago, filed discrimination charges with EEOC in 2007, which sued Promens on their behalf last fall.

The women alleged that a Promens supervisor “repeatedly propositioned temporary female workers,” EEOC said in a news release announcing the settlement. When the women rejected the supervisor’s advances, he fired them.

“This pattern of quid pro quo harassment continued until Promens USA fired this supervisor in July 2010 after yet another woman complained of sexual harassment,” EEOC said.

When EEOC investigated, the agency also found that Promens USA excluded women from jobs in the rotomolding department, which paid more than the finishing department.

The EEOC stated that “Employers should take notice that women cannot be excluded from a class of jobs based on stereotypes about their physical strength of assumed lack of interest. The EEOC uncovered evidence that Promens systematically excluded women from higher-paid positions as machine operators,” Hendrickson said. “Federal law plainly forbids work force segregation on the basis of sex.”

If you believe you have been subjected to sexual harassment in the workplace, speak to your human resources department. If your concerns are not addressed, go to the Equal Employment Opportunity Commission (“EEOC”) or an attorney that handles employment law cases.

If you have been subjected to sexual harassment or believe you have suffered discrimination in the workplace, call Scott Behren and the Behren Law Firm for a consultation.

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In Florida and most other states, where an employee quits his/her job, they are typically not entitled to recover unemployment benefits. The exception to this rule is where an employee quits based upon good cause attributable to the employer.

Believe it or not, in a case in Miami, a female employee quit her employment based upon the sexual harassment of her employer, and sought unemployment thereafter. Florida unemployment refused her unemployment benefits questioning whether or not she was sexually harassed because she did not go to the police or seek counseling. The employee claimed that she tolerated the actions of her employer for a while because she needed her job, but could not tolerate it any longer and quit.

The Third District Court of Appeal in Miami, thankfully, ruled that this employee was entitled to her unemployment benefits. The Court ruled, “Additionally, sexual harassment can continue for several years before the victim makes public her complaint . . . . Considering a job is usually a person’s economic lifeline, the claimant’s failure to contact outside authorities regarding her complaint cannot be called unreasonable or inherently improbable.”

The case is 940 Lincoln Road Enterprises v. Margarita Hernandez.

If you are refused unemployment benefits by your employer or the unemployment office, seek the advice of an employment lawyer. There are many deadlines to be observed to protect your legal rights so don’t let them slip by. Feel free to call Scott Behren and the Behren Law Firm with questions on your unemployment benefits.

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As you all may know, the Americans with Disabilities Act prohibits employers from discriminating or terminating an employee based upon a disability or perceived disability. One question that came up in Florida Court is whether it is a violation of the ADA to require employees to participate in wellness programs or face an insurance premium surcharge.

In 2009, Broward County, Florida implemented a wellness program for its employees. The program required participants to take a health assessment test and produce a blood sample to determine glucose and cholesterol levels. Those who didn’t participate had a $20 surcharge on health plan premiums.

Broward County employee Bradley Seff filed a class-action complaint, alleging that the county’s wellness incentives violated the ADA. The U.S. District Court for the Southern District of Florida dismissed the lawsuit, saying, “The wellness program is not a subterfuge; it was not designed to evade the purpose of the ADA. Rather, it is a valid term of a benefits plan that falls within the ambit of the ADA’s safe harbor provision.”

The court noted that the two requirements of the safe harbor provision were met in this case:

(1) that the party in question be a bona fide benefit plan

(2) that the provision in question be based on underwriting, classifying, or administering risk and not be used as a subterfuge for discrimination.

The EEOC has suggested informally that a wellness program that is mandatory or involves a penalty may violate the ADA, although it has not issued any formal guidance.

If you believe you have been subjected to discrimination at the workplace based upon a disability, feel free to call Scott Behren and Behren Law firm for a free consultation.

Here is a copy of the decision of the Federal Court in Bradley Seff v. Broward County.

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You may recall that I posted some months ago about a lawsuit filed against the State of Florida accusing it of violating the State constitution by refusing to raise the minimum wage on January 1 to reflect the increase in cost of living.

Well guess what? Florida’s minimum wage will increast to $7.31 an hour from the current $7.25 an hour as a result of a circuit court judge ruling this week.

Leon County Circuit Court Judge Terry Lewis ruled that the State of Florida violated Florida’s Constitution by failing to raise the Florida minimum wage on January 1 to reflect last year’s increase in the cost of living, as required by a constitutional amendment approved by Florida voters in 2004.

The state minimum wage will increase to $7.31 an hour effective June 1st. The new minimum wage for tipped workers will also rise by 6 cents, from $4.23 to $4.29 an hour.

In 2004, Floridians voted to amend the state’s Constitution to enact for the first time a state minimum wage. Under the voter-approved amendment, the state minimum wage increases every January to keep pace with any increase in the cost of living during the preceding year, and does not decrease in those rare instances where the cost of living dips.

In the lawsuit, the plaintiffs charged that the state had used an erroneous formula in calculating annual adjustments in the minimum wage, instead of using the method required by the Florida Constitution. The agency’s method resulted in a decrease to Florida’s 2010 minimum wage and would have artificially held down subsequent increases, including 2011’s, by factoring in a brief dip in the cost of living during 2009.

Judge Lewis ruled that under the Florida Constitution, the minimum wage can never be decreased and that, accordingly, the correct minimum wage this year is $7.31 – six cents more than the $7.25 federal minimum wage. Judge Lewis’ ruling also requires that the state calculate future annual increases to the minimum wage using the formula laid out in Florida’s Constitution.

Its a huge victory for Florida minimum wage employees. While it is not a big difference in hourly rate, I’m sure every little bit helps in this tough economy.

If you have questions about the minimum wage in Florida or your employee legal rights, feel free to call Scott Behren and the Behren Law Firm for a free consultation.

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The news continues to show that the workers that seem to most frequently get their wages stolen from them are restaurant workers. Frequently not getting paid minimum wage or overtime wages as required by the Fair Labor Standards Act (“FLSA”).

The owner of Ayara Thai Cuisine restaurant in must pay $162,201 in back wages to 35 employees for violating federal minimum wage, overtime and recordkeeping laws, officials said Monday.

Ayara Thai owner Ayut Asapahu paid his workers in cash at a flat rate for their hours worked. The rate was below minimum wage and without regard to overtime as required by the Fair Labor Standards Act, the U.S. Department of Labor said in a statement.

Investigators determined that the restaurant owner failed to keep records of employees’ hours and pay, but learned through an investigation that Asapahu paid his kitchen employees $80 to $110 for an 11- to 12-hour workday.

Other employees worked six- to 12-hour workdays, most receiving a daily rate of $45 to $50, authorities said.

The FLSA requires that covered employees be paid at least the federal minimum wage of $7.25 for all hours worked. They also must be paid time and one-half their regular rates of pay, including commissions, bonuses and incentive pay, for hours worked beyond 40 hours a week or eight hours a day.

Employers also must maintain accurate time and payroll records.

“Many restaurant workers in the Los Angeles area are subject to unacceptable wage practices and irregularities, and we are determined to make sure that they and other vulnerable employees are paid proper wages,” Kimchi Bui, director of the Los Angeles district office of the Labor Department’s

If you believe you are not getting paid properly by your employer, feel free to contact Scott M. Behren and the Behren Law Firm for a free consultation.

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