Getman Sweeney has successfully settled many wage cases in industries where employees are regularly cheated out of overtime pay or other wages to which they are entitled. Just because a practice is common, does not make it legal. Many industries have pervasive and illegal pay practices.
Listed below are industries where violations may exist:
• Companies Requiring Workers to Work Off the Clock
• Companies Treating Workers as Independent Contractors
• Companies Paying By Pay Card
• Ambulette and Ambulance Companies
• Bloomberg Employees (Including Installation Coordinators)
• Call Centers
• Factories Requiring Personal Protective Equipment (PPE)
• Tips for Restaurant and Service Industry Workers
• Exotic Dancers
• Visa Holders
• Mortgage Loan Officers and Mortgage Originators
• Car Mechanics
• Car And Truck Dealership Salesmen, Service-Writers, Mechanics and Partsmen
• Health Aides
• Drivers of Vehicles under 10,001 Lbs.
• Mechanical/Electrical/Structural Designers-Detailers-Draftsmen
• Cable Installers
Getman Sweeney has handled numerous cases where workers are made to bear work related expenses. For example, some workers have to pay for tools, equipment, a car or truck, travel expenses, cellphones, dues, promotional expenses, and other expenses for their jobs but are not reimbursed for the cost. Under federal law, it is illegal if such work expenses bring your pay below the minimum wage in any week. In addition, shifting any work-related expenses onto workers is simply illegal in many states, regardless of whether the result brings wages below the minimum wage, or not. Some common jobs where workers must bear their employer’s business expenses are pizza delivery drivers, service technicians, and mortgage brokers. If your job requires you to shoulder work-related expenses, call us to determine if the practice is legal. If the expense deductions are illegal, we can help you get your money back.
Getman Sweeney has handled numerous cases where workers are made to perform free work for the company, by working “off the clock.” In these cases, the lack of time records for the work does not prevent the claim from being brought successfully, as workers are permitted simply to testify about the full extent of the unpaid hours. However, as an aid to enforcement, the U.S. Department of Labor has now launched a new IPhone app to allow workers to record their work time on their smartphones. Click here to download the app. After recording the time, workers may send the time records by email to have the time sheets reviewed. Getman Sweeney would be happy to review these records for workers looking for quicker response than might be available through the US Department of Labor.
Workers in many fields are misclassified as independent contractors, when by law, they are really employees who would be entitled to minimum wage, overtime at the rate of time and one half, and would be entitled to have the employer bear the cost of work related expenses. The misclassification of workers as contractors is common in industries such as truck drivers, delivery drivers, janitors, security guards, store delivery persons, and home health care providers such as nurses, home health aides, and various therapists. While the test of who is a contractor and who is an employee can be complex, relevant considerations are how much control the business exerts over the work of the contractor, whether the contractor is performing the primary business of the company, and whether the contractor is truly in business for themselves.
A newly emerging trend it to pay workers by “Pay Card” instead of by check or cash wages. Pay cards are generally cheaper and easier for employers, but they can have costs for employees. The legal requirements concerning pay cards vary state by state. However, the key question is whether use of the pay card can cost the employee fees. If they do, such fees can be seen as unlawful deductions from wages.
Contact us about this investigation
Insurance Adjusters are often classified as “independent contractors” when in fact they are really “employees” and entitled by law to overtime wages. Whether someone is a true “independent contractor” or an “employee” depends not on how an employer or a contract defines your position, or on how you are paid (per day, per job), or even how your pay was reported (1099). Instead, your status is determined by law, and a careful analysis of a number of variables about your job will lead to a determination of whether you are an independent contractor or an employee. If you are determined to be a non-exempt employee, the law requires your employer to pay you overtime wages for any hours over 40 that you work in a week.
If you think you were misclassified as an independent adjuster, you may be able to recover your back overtime wages plus liquidated damages. Call us, and we will help you determine if you were misclassified. The call is free and confidential.
Getman Sweeney is suing Swift Transportation Company and Interstate Equipment Leasing for treating the drivers who lease trucks from IEL as independent contractors, when by law, they should be treated as employees. Getman Sweeney is investigating several other trucking companies for the same violation. By treating drivers as contractors, rather than employees, various trucking companies throughout the U.S. control the drivers’ work just as they would employees, but shift various costs and business risk to the drivers. The result of a misclassification if it is found to exist, is that various charges, such as truck lease, insurance, tolls, administrative costs, and QualComm would be legally impermissible deductions from wages in many states. If you were a trucker treated similarly to an employee but were labelled as an “owner-operator,” please call Janice Pickering at Getman Sweeney to review your situation.
Getman Sweeney has successfully sued EMT/ambulance companies and is currently suing both an ambulence company and an ambulette service for their failure to pay overtime at the rate of time and one half for all hours over 40. Overtime violations appear to be common in these industries.
Contact us about this investigation
From its inception through 2013 (when numerous lawsuits were filed and the U.S. Department of Labor resolved an audit of the entire company), Bloomberg L.P. failed to pay overtime premium pay to any class of employees except interns. Since then, Bloomberg “reclassified” some positions and begun paying overtime to some but not all of its employees. Currently, Getman Sweeney is suing Bloomberg, LP for its failure to pay certain help-desk call center workers overtime for hours over forty.
It appears to Getman Sweeney & Dunn that Installation Coordinators should be entitled to overtime while Bloomberg might still classify the position as exempt. If you currently work or have worked within the last 6 years as an Installations Coordinator or at any other help-desk or call center at Bloomberg LP, Getman Sweeney & Dunn is happy to review your pay situation. Call us at (845) 255-9370 or send us an email. The consultation is confidential and free, and there is no obligation to bring a case.
Getman Sweeney has successfully sued call centers for their failure to pay overtime at the rate of time and one half for all hours over 40. Unfortunately, this practice continues to plague the industry. Additionally, call centers frequently fail to pay employees for all hours of work, such as for computer start up and log off time.
Getman Sweeney has sued Butterball for its failure to pay production line employees for all the hours they work. Many companies require employees to wear protective equipment to work in the production area, but fail to compensate employees for the time such donning and doffing takes. The Supreme Court has generally declared that an employer must pay for all time from the first donning through the last doffing, with the exception of meal breaks of 30 minutes or more. Getman Sweeney will continue to review cases of employers that continue to violate the law.
There are many ways that service industry employees are cheated of wages. Some service industry employers (such as caterers, restaurants, banquet facilities, airlines) charge customers a mandatory service charge, gratuity, or tip, but do not distribute the service charge to the service employees that earned it. Some positions are commonly tipped, where the charge is not mandatory for the customer, but the employer still takes a portion of the charge. (Commonly tipped employees include waiters and waitresses, hosts/hostesses bartenders, bellhops, skycaps and redcaps, hairdressers and barbers, nail salon workers, exotic dancers, and various others). The practical effect is that the employer or supervisors keeps part or even all of the gratuity that the customer intended for the employee. For example, some restaurants and hotels include a mandatory 15% or 20% service charge or gratuity for food service, but distribute only part (or none) of the gratuity to the food servers. Recent court decisions have held that failure to turn over the entire amount of the tip or service charge to non-supervisory workers invalidates the employer’s claim for a “tip credit” against the current minimum wage. Thus many workers who receive only the federal minimum wage of $2.13 per hour (with the remainder of their wages in tips) are due an additional $5.12 per hour worked. Thus, an employee working 40 hours per week would be entitled to $204.80 in back wages for each week plus an equal amount in “liquidated damages.” A full time employee could be due more than $21,299 per year of employment, if the employer diverted some or all of the tips or service charge to supervisory personnel. This amount is due in addition to the amount of tips wrongfully taken. Tip pooling among non-supervisory employees is permissible, but if a supervisor or owner takes a cut of the tip pool, the employee must be paid at least the current state or federal minimum wage per hour ($7.25), by the employer. Another way that workers are cheated is if the tip credit is taken even though workers spend more than 20 percent of their time engaged in non-tipped activities. The Department of Labor’s (DOL) interpretation of FLSA’s dual jobs regulation, that employees who spend “substantial time,” defined as more than 20 percent, performing related but non-tipped duties should be paid at the full minimum wage for that time without the tip credit, has been upheld by the Courts.
Strippers around the U.S. have been successfully suing their employers for treating them as independent contractors and for unlawfully withholding part of their tips.
Visa holders are entitled to enforce the terms and conditions of work they are offered at the time they accept their visas. In addition the Department of Labor establishes certain minimum work standards for visa recipients including payment of at least the prevailing wage in effect for the occupation and location where work is performed. Limits, which vary depending on the visa type, are placed on the costs that employers can impose on workers for obtaining visas and traveling to the United States. Visa holders who may have such claims include H-1B (Specialty occupations), H-2A (Temporary or seasonal agricultural workers), H-2B (Temporary or seasonal non-agricultural workers), H-3 (trainees), and L (intra-company transfers).
Mortgage originators (often called “loan officers”, “account executives”, or other titles) are routinely paid on a mixed commission, or commission plus draw, commission with an hourly floor, or even a salary basis. As the industry has experienced extensive financial shrinkage, banks and mortgage brokers have begun shorting loan officer pay in a variety of unlawful ways. Very commonly, loan officers are not allowed to record all the hours that they work. Also, they are not reimbursed for extensive expenses, such as travel, phone, home office, trainings, etc. Mortgage sales staff, who work from call centers are generally not exempt under any FLSA exemption. Even loan officers who are called outside sales staff are frequently not exempt from the FLSA overtime pay requirement, since they do not routinely consummate sales outside of a home or branch office, but only do promotional work outside the office. Getman Sweeney has successfully handled numerous cases for mortgage loan officers. Despite years of back pay lawsuits, this industry continues to fail to abide by its obligation to pay loan officers overtime and even minimum wage, as required by law. Currently Getman Sweeney is preparing a lawsuit against Waterstone Mortgage Corporation for its failure to pay overtime and minimum wage and is also investigating KeyCorp for the same violations.
Car mechanics are frequently paid either a salary or an hourly rate. There is no overtime exemption for auto mechanics outside of a dealership and so mechanics must be paid time and one half for all hours over forty in a work week. Some auto dealership mechanics may be exempt, however, and the determination of exemptions at a dealership requires careful review with an attorney.
The FLSA exempts “Salesman, partsman, or mechanics” at certain car or truck dealerships from overtime pay. 29 U.S.C. 213(b)(10). This exemption is very technical, depends on facts which may not be known to employees and which require careful analysis of the law. Many such employees are misclassified as exempt from the overtime law. Partsmen who do not receive most of their pay through commission have recently been held to be covered by the FLSA overtime and minimum wage protections. Additionally, salesmen, partsmen, mechanics, and service-writers must be paid most of any commission based on warranty work. So to the extent that commission payments are primarily derived from a service department’s non-warranty work, the exemption from the FLSA does not apply. The exemption from overtime for mechanics does not include “employees primarily performing such nonmechanical work as washing, cleaning, painting, polishing, tire changing, installing seat covers, dispatching, lubricating, or other nonmechanical work.” “A tow or wrecker truck driver or helper who performs nonmechanical repair work is not exempt.” Such individuals would be covered by the FLSA and must receive overtime pay. The exemption for any service-writers is also highly suspect.
Health aides who work in private homes may be exempt if they spend more than 20% of their work time doing general household chores. However, home health aides that work in “institutions” generally are not exempt from the time and one half overtime requirement. This requirement is frequently violated. Getman Sweeney has successfully handled litigation in the past for home health aides.
On August 10, 2005, Congress changed the overtime law for drivers of vehicles with a Vehicle Gross Weight Rating of 10,001 lbs. or less. Drivers of these vehicles were generally exempt from the federal overtime la
w prior to August 2005 (if they carried goods across state lines, or if the goods originated out of state), but now these drivers are not exempt and are covered by the federal overtime law. This change in the law will have a very significant impact for Route Delivery Drivers (for example, Newspaper Route Drivers and sales managers who oversee drivers but also handle routes) and repairpersons (those who carry parts that originated out of state). This change in the law is one of the most positive developments in overtime law in the last two decades. It has gone largely un-noticed in the press and by employers, who may continue to believe that drivers of these vehicles are exempt, simply because they are carrying goods which originated out of state. Getman Sweeney is making a major effort to ensure that the law is enforced for repairpersons and drivers who are still being denied overtime despite the change in the law.
Mechanical/Electrical/Structural Designers-Detailers-Draftsmen, employees who make fabrication drawings from information provided by engineers or other professionals, are generally not exempt from the Fair Labor Standards Act overtime requirements. While some employees doing this work are paid overtime, many are not. In some industries, such as the oil and gas industry, many employers pay employees in these positions on a salary basis and do not pay overtime, even though federal law requires overtime pay. If your work falls within this category and you worked overtime in the last 3 years but were not paid for it, contact us. We can help determine if you are owed back wages and liquidated damages. If you are, we can help you collect them.
Cable and line installers are frequently treated as independent contractors, even though they work for a single company exclusively, receive pay set by that company, and have no opportunity to increase income other than by working longer hours. Many such installers cannot be legally paid as independent contractors. If installers work more than 40 hours in a week and are not paid overtime premium pay at the rate of time and one half, there may be a valid claim for back pay and an equal amount in liquidated damages. The fact that the company pays such workers as an independent contractor and reports such pay on an IRS Form 1099, does not make this pay practice legal.
If you work in one of the industries described above and are not paid your wages or overtime, contact us: