labor lawAdivision of labor law center

Despite a recent ruling in the 9^th U.S. Circuit Court of Appeals, the U.S. Department of Labor is targeting employers who violate wage and hour laws.

 

The federal Department of Labor has filed several class action suits in recent months against employers who require – or permit – employees to work “off the clock.” Violations include permitting employees to work while on unpaid meal breaks, or permitting employees to “volunteer” after hours and on weekends.

 

The FLSA or Fair Labor Standards Act permits the government to file collective actions on behalf of a group of employees in a similar situation. Employers are generally liable for 2 years of back pay, and 3 years in the case of willful violations.

 

In a recent ruling limiting membership in such class action suits, the 9^th Circuit Court of appeals ruled that an employee can join a collective action only if he or she files written consent with the court at the time the action is brought.

 

In Smith v. T-Mobile USA, two employees in California voluntarily settled their claims for working during unpaid breaks. Later, the two filed motions to be included in the collective action suit against T-Mobile USA, Inc. The 9^th Circuit denied the employees’ motions, ruling that because they had opted out of the suit at the beginning, they could not join it at a later time.

 

Colleen F. O’Keefe, an employment lawyer with the firm of Franczek Radelet PC, opines that employers can use this principle in their favor. “A strategically timed offer of judgment is an important litigation tool” in a collective action suit, O’Keefe says.

 

Despite that ruling, many employers are at risk of lawsuits for back wages, penalties, interest, fines and fees.

 

Under the FLSA and various state minimum wage laws, a non-exempt employee must be paid for all the  time he or she works. This includes time that the employee “voluntarily” works, in excess of his or her scheduled shifts.

 

A call-center employee who volunteers to come in on a day off for additional training, must be paid for that time. This principle applies to any other industry, as well.

 

The FLSA also requires that employees be paid overtime – usually after working 40 hours in the payroll week. (Some state laws set stricter requirements for overtime.) If the employee volunteers to work overtime, he or she must be compensated at a rate equal to 1.5 times the employee’s average wage.

 

Even in cases where the employer has expressly forbidden an employee from working overtime, if the employee works, he or she must be paid for it. The employer may discipline or terminate the employee for working unauthorized overtime, but the employee must be paid for it.

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