Affordable, Experienced Legal Representation by Attorney with Ivy League Training - Trademark, Copyright, Securities, Antitrust and Other Commercial Litigation -- and Asset Protection or Recovery Litigation -- for Plaintiffs or Defendants in Federal or State Courts

FLSA - Many Managers Have Valid Claims for Unpaid Overtime under the Federal Labor Standards Act of 1938

Millions of employees in the United States have been denied the compensation required by federal law as to overtime wages for hours worked in excess of 40 hours in a week, as well as for work required to be performed before or after "starting work" each day. Let me help you determine whether you have a valid claim for unpaid time-and-a-half (for work in excess of 40 hours in a week) or for other hours you worked (such as in preparing for work) for which you were not paid. Don't be fooled by your job title. Job titles are often designed to mislead employees into believing, falsely, that they are exempt from FLSA coverage. What the employee actually does at work is what counts.

Overtime after 40 Hours in a Week and Pay for All Hours Worked Is Required for All NON-EXEMPT Employees

To understand the Federal Labor Standards Act (FLSA), you have to first learn what jobs are exempt from the requirements and which are not. This is not as easy as you think, and for such reason many millions of employees in the United States have not been getting paid the full amount required under the FLSA.

Although professionals, administrators and executives are exempt, you have to know more about the job and the pay to determine if a specific individual is in the exempt or non-exempt category. For example, if the employee is not getting paid at least $455 per week, he/she is not an exempt employee, even if the employee otherwise qualified as a professional, administrator or executive. Outside sales persons are exempt. Also, various computer employees are exempt. But don't be fooled by job titles. In the regulations promulgated 4/23/04 by the U.S. Department of Labor, 29 CFR Part 541, it was made clear at the outset, in Section 541.2, that "Job titles [are] insufficient". In Section 541.3, the regulations further state that

the ... exemptions ... do not apply to manual laborers or other "blue collar" workers who perform work involving repetitive operations with their hands, physical skill and energy. Such nonexempt "blue collar" employees gain the skills and knowledge required for performance of their routine manual and physical work through apprenticeships and on-the-job training, not through the prolonged course of specialized intellectual instruction required for exempt learned professional employees such as medical doctors, architects and archeologists. Thus, for example, non-management production-line employees and non-management employees in maintenance, construction and similar occupations such as carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, construction workers and laborers are entitled to minimum wage and overtime premium pay under the Fair Labor Standards Act, and are not exempt under the regulations in this part no matter how highly paid they might be.

The DOL regulations are extensive (15 pages of 3-column, 9 point type - FLSA Regulations, CFR 29 Part 541. To help determine whether you and various co-workers may have a claim for unpaid wages or unpaid overtime, you should ask yourself various questions, including:

1. Were/are you being paid less than $455 per week?
2. Were/are you an inside sales person?
3. Were/are you with a job title that doesn't accurately reflect your position?
4. Were/are you a "manager" that does not hire or fire?
5. Were/are you a professional who is not used to make professional decisions?
6. Were/are you called an "executive" but you do not function in that capacity to a great extent?
7. Do/did you have to spend unpaid time at home or before starting work each day to prepare for your day's work?
8. Do/did you have to spend unpaid time at work, after your official work day was over, to complete your job each day?

The law is unclear as to millions of employees, as recent court decisions have shown, and for millions of employees there appears to be valid claims that can be asserted on their behalf. This doesn't mean that every claim will prevail. Some will be settled; some will be dismissed by the court; and some will go to trial, where the jury could decide one way or the other.

If you want to talk about the facts pertaining to your own employment, please give me a call, at 212-307-4444. There would be no charge for the initial consultation.

As you can see from the above discussion, the first issue we need to examine is whether you appear to qualify as a protected employee under the FSLA. Not every employee is protected. Often, the employer dresses up a protected job with a title suggesting that the employee is not covered (i.e., that the employee is "exempt"). But if the work being performed is the work done by a protected employee, the title can be disregarded, and the employer may well have liability.

The federal statute (FSLA) enables an employee (or former employee) to go back either 2 or 3 years to collect for unpaid overtime compensation. The 3-year period is for wilful violation.

Many courts have held that there is a treble-damage recovery for wilful violations of the FLSA (whereas other courts have limited the damages to double damages), and the employer is also required to pay legal fees and certain litigation expenses.

The lawsuits may be brought in either federal or state court.

An employee (or former employee) can join with others to bring the suit collectively, or can claim that he/she represents a "class" of present or former employees who were similarly deprived of overtime compensation required by federal law to be paid to them.

It is interesting to see what type of activity counts as "work" and "hours" for an employee (or former employee) making claim, including work done at home for the employer with the employer's actual or constructive knowledge; work done at the beginning or end of the work day to prepare for or complete the employee's work for the day.

The amount of money at stake can be quite substantial for any one employee who has been deprived of overtime compensation for a 3-year period, or about 150 weeks. [This assumes that wilful violation is proved; otherwise, the statute of limitations for FLSA claims is 2 years.] If the amount of unpaid overtime averages 10 hours per week, for 150 weeks, this amounts to 1,500 unpaid hours. Assuming that no compensation at all was paid for these extra hours (beyond 40 per week), and that your hourly rate or salary was $16/hour, your overtime rate would have been $24/hour, and 1,500 times $24 equals $36,000. After (an assumed) trebling and the addition of attorney's fees, the total amount at issue under these assumptions would range from about $125,000 to $150,000, depending on the amount of attorney's fees involved.

In your employment was anywhere in New York State, you would have an additional 3 [or 4] years. The statute of limitations for New York unpaid wage claims is 6 years. Thus, for some claimants a very substantial amount of money is at stake. For a group of similarly-situated claimants, we could be talking about a very, very large sum of money.

In late January, 2007, Fox News reported that Wal-Mart agreed to pay $33,000,000 to settle an unpaid overtime case with about 87,000 Wal-Mart employees. This settlement amount did not include any penalties or fines, Wal-Mart having asked the Department of Labor to review Wal-Mart's payment records to determine any improprieties. The DOL also found that 215,000 employees had been overpaid during the last 5 years, according to the article, and that Wal-Mart was not going to seek a refund from such employees.

You may be interested in a U.S. Department of Labor press release describing how it recovered $87,000 in unpaid overtime wages for 8 county detention workers. The release also stated that the DOL recovered more than $200 million during 2004 for more than 288,000 workers throughout the U.S. DOL Press Release about Recovery of $87,000 in Unpaid Overtime Wages

If you are interested in discussing your own situation, please give me a call. There would be no charge for discussing your possible claim.

Please call me at 212-307-4444 to discuss your claim over the telephone, or to set up an appointment for you to meet with me in my office, at 325 W. 45th Street, New York NY 10036-3803. It can be expected that the legal fee for most of these cases will be on a contingent-fee basis, with out-of-pocket expenses (such as filing fees and any deposition transcripts) to be paid by the client(s).

Please don't let the passage of time destroy the value of any meritorious claim you may have.

Last revised 10/13/07B