labor lawAdivision of labor law center

Slick maneuvers by employers to artificially lower the hourly wage for straight time and thereby avoid overtime are being regularly rejected in court.

The 5^th Circuit Court of Appeals recently ruled that virtually every payment made to an employee during the first 40 hours of work must be figured into the employee’s “regular hourly rate” for overtime. When a worker puts in more than 40 hours in the payroll week, he or she must be paid 1.5 times the “regular hourly rate.”

Recent court rulings show that state and federal agencies are getting tough with employers on wage and hour issues, including misclassifying employees as independent contractors, exempt status and now overtime.

In the most recent case, when United Technisource Inc. or UTI hired Timothy Gagnon, a highly skilled aircraft painter, the prevailing wage for that job was $18.00 per hour. Yet, UTI offered Gagnon just $5.50 per hour, with a $12.50 per hour per diem, up to $500 total. The per diem caps out at exactly 40 hours in the payroll week. UTI further offered Mr. Gagnon $20 per hour for hours in excess of 40 hours per week.

When Gagnon eventually filed a wage complaint for unpaid overtime, the company argued that the law required only $5.50 x 1.5 = $8.25 per hour overtime, and Gagnon was being paid almost three times that amount. A lower court found for the company.

However, the court of appeals disagreed. The judges found that if Mr. Gagnon worked (more…)

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 (more…)

The California Labor Agency recently issued an opinion allowing employers to reduce an exempt employee’s salary and hours worked, at the same time, without endangering the worker’s status as a salaried exempt employee.

In the example used, the state labor agency permitted an employer faced with economic difficulties to reduce the work schedule of exempt employees from five days to four days. The state DLSE or Department of Labor Standards Enforcement ruled in a recent opinion letter that simultaneously reducing the employee’s salary by 20%  “did not violate the ‘salary basis’ for the workers’ overtime exemption under the state Labor code and wage orders” as long as the employer’s action is a temporary measure.

This is a radical change, since the DLSE took the opposite position in 2002. In an opinion letter issued in that year, the California agency ruled that the employer could reduce an employee’s salary. However, if the employee’s work hours were also reduced, that change the employee from exempt to non-exempt status.

This is a primary concern for California employers, since non-exempt employees are entitled to overtime under state law. California has the strictest (more…)

The state Department of Commerce recently announced that the 2010 Ohio minimum wage will remain at $7.30 per hour.  

This is good news for employers across Ohio, who had been bracing for another annual increase on January 1, 2010. Under an amendment to the constitution passed by voters in November 2006, the Ohio minimum wage will increases each year on January 1.

However, the Ohio minimum wage increase is based on inflation for the previous year – specifically, it is based on the Consumer Price Index or CPI for urban wage earners and clerical workers for the 12-month period ending August 31. So the 2010 Ohio minimum wage is based on the CPI for September 2008 through August 2009.

During that period, the CPI declined by 0.2%. By law the Ohio minimum wage cannot be reduced, but it will not be increased in 2010, either.

The Ohio minimum wage applies to employers with annual revenue of more than $267,000. Employers grossing less than $267,000 per year can pay just $7.25 per hour – an amount equal to the federal minimum wage. The minimum wage for employees who are 14 or 15 (more…)

Illinois, Nevada and Kentucky implemented minimum wage increases effective today, July 1, 2009.

The Kentucky minimum wage increases today from $6.55 to $7.25 per hour. This change is just 23 days earlier than an identical change in the federal minimum wage.

The Illinois minimum wage increases from $7.75 to $8.00 today. This increase puts the Illinois minimum wage in a four-way tie for the fourth highest minimum wage in the nation.

The Nevada minimum wage increases today from $6.85 per hour to $7.55 per hour, although a number of Nevada employers are exempted.

The highest minimum wage is currently in the state of Washington, with a minimum wage of $8.55 per hour. The Oregon minimum wage is $8.40 per hour, while the minimum wage in Vermont is $8.06 per hour. The minimum wage in California, Connecticut and Massachusetts is at $8.00 per hour – the same as the Illinois minimum wage, effective today.

The minimum wages in Washington, Oregon and Vermont are adjusted for inflation annually on January 1. The minimum wage in California, Connecticut and Massachusetts are not adjusted annually for inflation – they are changed only by statute.

The next Illinois minimum wage change (more…)