labor lawAdivision of labor law center

The U.S. Department of Labor has filed a lawsuit on September 25, 2008 against Houston-based CEMEX Inc. for overtime violations. The suit maintains that the company failed to pay $5 million in overtime to more than 2,000 drivers from eight states. The employees were drivers of ready-mix concrete trucks.

CEMEX, founded in Mexico in 1906, provides cement and other building supplies for the construction industry. The company’s website claims it employers more than 60,000 employees in 50 countries on 5 continents.

Affected employees of CEMEX worked in Texas, New Mexico, Arizona, California, Florida, Georgia, North Carolina and South Carolina.

The suit is the culmination of a 3 year investigation by the Houston Wage and Hour Division of the U.S. Department of Labor. The suit covers wages for 2005 to 2007.

“It is a top priority of this department to ensure that workers receive all the wages they have earned and we have recovered record amounts of back wages for workers since 2001,” said Secretary of Labor Elaine L. Chao. “With this legal action, we are seeking to recover more than $5 million that 2,000 workers are owed for their overtime work.”

The investigation found that drivers were paid on piece rate and incentive bonus pay for work. However, the company failed to include piece rate or incentive bonuses in calculating overtime pay at 1.5 times the employees’ usual hourly wage, when working over 40 hours per week.

Nonexempt employees must be paid overtime at 1.5 times their usual hourly rate, when working more than 40 hours per week, as required under the federal FLSA or Fair Labor Standards Act.

In this case, it appears that the employer did pay some drivers for overtime. However, the company failed to include the incentive bonuses in calculating the employee’s usual rate of pay, resulting in a lower rate being paid for overtime than required by law.

The U.S. Department of Labor specifically addresses this issue by saying, “In the case of employees paid on a piece rate, and/or entitled to receive an incentive bonus, all remuneration must be included into the regular rate of computing the overtime premium. In both instances, an employee is entitled to a sum equivalent to one-half the regular rate of pay multiplied by the number of hours worked in excess of 40 for the week [in addition to the usual hourly rate.]”

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