Posts Tagged ‘unpaid wages’

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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The way that some McDonalds employees in West Virginia were being treated makes me want to grimace (and I’m not referring to the big purple guy).

Three former employees are suing McDonald’s after they claim it violated the Fair Labor Standards Act for failing to pay minimum wage to employees.

Richard Estes, Gary M. Martin Sr. and Jeremy Thompson were employed at McDonald’s, according to a complaint filed Feb. 24 in the United States District Court for the Southern District of West Virginia.

Estes was employed from Aug. 1, 2006, until Nov. 1, 2008; Martin was employed from Dec. 1, 2008, until March 18, 2010; and Thompson was employed from June 1, 2009, until Dec. 14, 2009, according to the suit.

The former employees claim McDonald’s knew or should have known that its employees were illegally not paid minimum wage. They also claim they frequently worked more than 40 hours per week, but were never paid wages for hours actually worked in excess of 40 hours per week.

The defendant made several wage and hour violations, including telling the manager that employees were not to be paid for more than a set number of hours each week; for taking employees “off the clock,” when that set number of hours were met; requiring employees to work off the clock for up to or more than 40 hours per week; and requiring employees to work off the clock and not paying overtime, according to the suit.

If your employer is making your work off the clock, not paying you the minimum wage and not paying your for hours of over 40 hours per week, you may be owed additional wages and overtime. Feel free to call Scott Behren and the Behren Law Firm for a free consultation.

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Under Florida law, the general rule is that an employee who quits their job is not entitled to receive unemployment benefits. However, there is an exception to this general rule where the employee left with good cause attributable to the employer.

Dennis Martinez was a full time car salesman for Ford Midway Mall. Martinez was originally hired on a commission basis, but some time into his employment, his position was changed to where he received a draw against his commissions. When business declined and he was earning no commissions, based upon the employer draw, he would owe the employer money each week. As of the date of his resignation, Martinez owed over $2,000 to his employer due to these draws. Martinez expressed his dissatisfaction with this arrangement to his employer and resigned.

The unemployment referee determined that Martinez voluntarily quit without good cause of the employer. He further decided that because Martinez agreed originally to this draw policy, that he could not contest it a year later.

The Third District Court of Appeal reversed the determination of unemployment. The Court held that the unemployment laws “provides that an individual is not disqualified for unemployment benefits where the individual has “voluntarily left work with good cause attributable” to the employer. § 443.101(1)(a), Fla. Stat. (2009). “Good cause” includes cause attributable to the employer, which “as contemplated by the unemployment compensation law, describes that which would drive an average, able-bodied worker to quit his or her job.”

The Court held that the auto dealer was in violation of the Fair Labor Standards Act (“FLSA”) and the Florida Minimum Wage Act because Martinez was not getting paid the minimum hourly wage for the hours he was working for his employer. The Court held that the draw agreement used by the employer was in violation of the FLSA and Florida Minimum Wage Act. Moreover, the Court held that merely allowing them to pay under the draw policy, for a period of time did not result in a waiver of his legal rights under the FLSA.

The Court held that due to the employer’s violations of the FLSA and Florida Minimum Wage Act, Martinez had left his employment due to good cause attributable to the employer. The Court reversed the decision of unemployment and awarded Martinez his benefits.

The Opinion of the Third District Court of Appeal is here.

If you have questions about your right to receive unemployment benefits, feel free to call Scott Behren and the Behren Law Firm to discuss your legal rights.

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I have blogged on many occasions about the Federal Fair Labor Standards Act (FLSA). This law requires non-exempt employees to be paid at their regular hourly rate for all hours worked up to forty hours per week and to be paid overtime for each hour worked in excess of forty hours each week. There are of course many exceptions to this general rule. In addition, if you are a salaried and exempt employee you get paid the same salary regardless of the number of hours you work. Well a new case that has been filed adresses the isssue of whether working on your blackberry or responding to e-mails for your employer during non working hours is compensable.

A police sergeant is suing the city of Chicago for allegedly violating Fair Labor Standards Act (FLSA) regulations by not compensating for time spent on the employer-issued BlackBerry during off-hours. The case is an opt-in collective action, allowing for other “similarly situated employees” to join the suit. According to the law suit, the sergeant and the Collective Class were allegedly required to be on call and respond to communications outside of their normal working hours. The suit says that the employees were not compensated for the time spent on their employer-issued communication devices during off-hours, including overtime pay.

The sergeant and the Collective Class were all non-exempt employees and compensated on an hourly basis. They are suing for unpaid wages and overtime pay, as well as interest and attorney’s fees.

“Exempt employees, they make the same salaries no matter how many hours they work during a week, so using a BlackBerry from home at night is not an overtime issue for them. But when you’re dealing with non-exempt employees, they have to be paid for all the time they work,” explains Susan Prince, a legal editor for Business and Legal Resources (BLR) in an interview with NPR.

So if you are an hourly employee and are expected to work on e-mails or blackberry’s during your off work hours, keep track of your time and speak to your employer about getting paid for this time. If the employer refuses you might want to speak to the U.S. Department of Labor or an employment law attorney that handles FLSA claims.

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