Wage & Hour Litigation from the perspective of Ron Poliquin from The Poliquin Firm. Ron is a Dover, Delaware Employment Attorney.
Wage and Hour Cases
Ron Poliquin Delaware Employment Attorney representing employees DoverLawOffice.com.
Today's video is going to focus on why attorneys love wage and hour cases under the Fair Labor Standards Act. Now Fair Labor Standards Act is a federal law which basically says, someone works overtime they are entitled to time and a half. OK, the reason why attorneys love this law because it's a very broad law. Meaning it's broadly interpreted. It almost applies to every employer. It means the general rule, barring limited exceptions and exemptions I should say, is if you work over 40 hours a week you're entitled to overtime.
Who does it apply to? Like I said, it applies to almost all employers. Meaning the technical (I am looking at my computer screen here so if I veer off a little bit) it requires all employees engaged in commerce or the production of goods for commerce and $500,000 in annual gross sales or business done. Engaged in commerce is broadly defined okay. Meaning it applies almost everyone okay.
Here are some of the exemptions: commission sales employees, computer professionals, drivers, drivers’ helpers, loaders, mechanics, farmworkers, salesmen, seasonal recreational establishments, okay. And the biggest misconception is the salary white-collar exception, there is no white-collar exception okay. There is an exemption for executive administrative professional and outside sales employees. And these are defined by the federal Department of Labor regulations, who are paid on a salary basis okay.
Most employees’ employers improperly classify employees as salaried. Clerical administrative jobs are often misclassified simply because they are white-collar jobs. There is no white-collar exemption from overtime and just because you could say someone is salary doesn't mean they are exempt from overtime. They have to meet two tests,
- The duties test – what are the person's primary duties? Meaning it's not so much the person's title, if you call someone a manager what are they managing? Are they managing people? Are they doing everything that other people are doing, they just had the title manager? I remember growing up working a fast food restaurant we had a shift supervisor and basically did everything that everybody else did I don't know why they call him shift supervisor they maybe they just wanted to give him a title. That doesn't cut the mustard. It is what you actually do, not what your titles are. There is a duties test meaning the employees duties must be executive, administrative or professional. Job titles and honorary titles are going to be analyzed. At least half the employees time in each work week must be actually spent in exempt duties. Meaning if 51% of the time they are doing clerical work or secretarial work, then they are not exempt.
- They must be compensated on salary basis, but there are all sorts of exemptions to that. You can’t just give someone a salary and say they are exempt. Just because you have a nice title and salary, does not make you exempt from overtime. There can be no retaliation. Meaning if you come talk to me, come talk to an experienced employment attorney and we write a letter saying this person is not exempt, you cannot be retaliated against for that.
I understand the realities of getting an attorney and going up against your boss. What I tell people is, know your rights and then you can decide what to do with them. Don’t just assume that you are classified, or just because you have a salary, or just because you have a supervisor title that you are exempt from overtime. We are talking about thousands and thousands of dollars a year.
One of the reasons attorneys love these cases is:
- The burden is on the employer to prove this person is exempt. In almost every other case, the burden is on the employee to prove something. In this case, the burden is on the employer.
- There is individual liability. Meaning the person setting the hours and determining whether someone is exempt or not, can be individually liable. It is a pretty scary thing to be individually liable but a very good thing if you are on my side as a lawyer if you represent employees.
- You can get attorney fees and court cost fees for this case and there are liquidated damages. Meaning you can not only get what you were owed in overtime, but you also get double that. That is how they determine damages in this type of cases. Let’s say for the last two years you are owed $4000 in overtime, that automatically turns into $8000 in overtime.
No matter what anyone who comes to my office, I always talk about whether or not they are being owed overtime that they are not getting. There are a lot of jobs out there, especially small or medium size companies that have the attitude we can do whatever the heck we want. A lot of the time they are violating the fair labor standards act. Get your free analysis at DoverLawOffice.com, make an appointment to see me. I will give you a free analysis to see whether or not you’re exempt from overtime laws. Maybe you want to take action on it, maybe you don’t but at least know your rights this way you are empowered to act on them.
I’m Ron Poliquin, talk to you later. Thanks again.