Overtime Law

The coronavirus pandemic is changing the face of work. Many employees are working from home, while others are putting in double-time in essential roles. As the economy reopens, employers have implemented and will continue to implement measures designed to limit the spread of Covid-19. At their best, these myriad changes may make employees safer and more efficient in their jobs. However, the new work environment may also result in wage and hour violations. The following are a few violations that workers should look out for as they adjust to their changing workplace: Off-the-Clock Work Employers are required to compensate non-exempt employees, including hourly workers, for all work performed.  When one of these employees works without being compensated, she is said to be working “off-the-clock.” Off-the-clock work can lead to violations of minimum wage, overtime, and meal and rest break laws, as well as laws related to the timing of payment and the maintenance of accurate time records. Several Covid-19-related changes may increase the chances of workers being expected to work off-the-clock. For non-exempt employees who have recently begun working remotely, a substantial amount of communication may occur through phone calls and emails. Generally, this time should be logged and compensated. […]

By law, employees in the United States must be paid a base minimum for their work performed.  However, this protection varies widely depending on the state in which the employees are working. The federal Fair Labor Standards Act (FLSA) provides the baseline protection for employees.  Regardless of state, employers generally must pay their employees at least $7.25 per hour. While a state cannot permit employees to be paid less than the FLSA guaranteed minimum, states have the power to require employers to pay a higher minimum wage. The most direct way that this can be done is if a state sets its hourly minimum wage above $7.25.  For example, the current minimum hourly wage in California is $11.00 for employers with 26 employees or more and $10.50 for employers with 25 employees or less.  (Cities can also set higher minimum wages; for example, the current minimum wage for employees in San Francisco is $15.00 per hour.) States can also differ from the federal government in how they interpret the concept of a guaranteed minimum wage per hour. Under the FLSA, “[e]very employer shall pay to each of his employees who in any workweek is engaged in commerce . . . […]

Hourly workers’ paychecks can be unpredictable, varying drastically depending on their hours. Unscrupulous employers exploit this variance to short hourly employees of their full wages for their labor, often undetected. Tipped workers in most states are uniquely vulnerable to wage theft.  Most tipped workers earn a reduced hourly rate – in Washington, DC, the tipped rate is currently $3.89 per hour.  For some workers, the tips they earn bring that hourly rate to the District minimum wage ($13.25 per hour) or above.  But for many, tips aren’t enough, and employers are required by law to pay employees the difference between what the employee actually earned and the minimum wage.  The extra bookkeeping required leaves ample room for employers to commit wage theft. Like many employment violations, the challenge lies in enforcement.  It can be extremely difficult for employees to discover that they have been paid less than the minimum wage, and then to successfully recover those wages from their employers.  Many employees, fearing retaliation, don’t speak up at all.  If they do, they may often find enforcement of their right to the minimum wage time-consuming and costly.  The government can and does help combat wage violations, but the DC Office of the […]

During the United States Supreme Court October Term 2017, the Court delivered a 1-2 punch against workers and their right to earn overtime pay with its decisions in Encino Motorcars, LLC v. Navarro et al. and Epic Systems Corp v. Lewis (decided together with Ernst and Young, LLP et al, v. Morris et al., and National Labor Relations Board v. Murphy Oil USA, Inc., et al.,). The majorities (Chief Justice Roberts and Justices Alito, Gorsuch, Kennedy, and Thomas) in both cases held that elements of the Fair Labor Standards Act (FLSA or Act)[1] did not apply to the aggrieved workers in their attempts to earn a higher hourly rate due when working overtime hours. Among other things, the FLSA guarantees the right of certain workers to earn a higher rate, or overtime compensation, after working more than 40 hours during a specific workweek. However, there are classes of workers who are exempt from earning overtime compensation.  The exempted classes are numerous, but they include certain salespeople. Of relevance to the Encino case is that the Act specifically exempts any “salesman . . . primarily engaged in the selling or servicing automobiles . . . .” from earning overtime compensation. 29 U.S.C. § 213 (b) (10) (A). The core of […]

You may remember that about a year a half ago, the Department of Labor, under President Obama, issued a rule that was going change what’s called the “salary level” for “white collar” workers. The salary level is part of the federal overtime rules. Those rules basically say: if you’re a white collar worker and you make less than the salary level you should get overtime wages when you work more than forty hours in a week. The Obama Department of Labor basically wanted to double the salary level from $455 per week (about $23,660 per year) to $913 per week ($47,476 per year). In other words, under the Obama rule, white collar workers who made less than $913 per week ($47,476 per year) would automatically be eligible for overtime pay. Let’s take a second to appreciate that change. It was huge. The Department of Labor estimated it would have guaranteed overtime pay for at least 4 million additional white collar workers. Under Federal law, white collar workers include workers who are defined as “executive,” “administrative” or “professional” employees. Those are vague terms. They are defined by complex legal tests, which remain contested despite a long history of employment lawsuits. In an earlier post on […]

New York City workers and employee advocates cheered as the city last week passed legislation designed to protect some of its most vulnerable workers.  After being approved by the City Council on May 24, Mayor Bill de Blasio signed the Fair Work Week legislative package into law on May 30, 2017, stating that “thousands of people are going to gain the stability and the respect they deserve [under the legislation].” The Fair Work Week legislation creates a new chapter in the New York City Administrative Code to regulate the scheduling and work hours of fast food and retail workers in NYC.  The purpose of the Fair Work Week legislative package, as described by New York City Council Speaker Mark-Vivertio, is “to protect and enhance basic employment rights and to address many of the work-related challenges faced by those trying to make a living in fast food and retail.” After the law goes into effect on November 26, 2017, fast food employees must be given reasonable advance notice of their schedules.  In addition to requiring employers to provide fast food workers written notice of their first work schedule no later than their first day, fast food employers are required to provide employees […]

If you’ve been on social media today, you probably know that it’s Equal Pay Day. Congratulations, ladies: we’re trending on Twitter (far ahead of #NationalGrilledCheeseDay). And now that we’re a solid four months into 2016, the average woman’s earnings have finally caught up to what the average man made…in 2015. If you’re anything like me, you’ve heard the oft-repeated statistic: 53 years after the Equal Pay Act, women in America still only earn on average 79 cents for every dollar a man makes. The so-called #wagegap is drastically worse for women of color.  The gap affects women of all backgrounds, industries, education levels, and ages. Of course, we’ve made progress toward pay equity in the past 53 years, but not enough.  If trends continue, women won’t achieve pay equity until 2059, when I’m 67. (I don’t want to do the math on the hit my 401(k) will take relative to my guy friends, but I’m guessing it won’t be pretty.) Yikes. Part of the problem is that many young women don’t accept that gender discrimination is a real, affect-your-bank-account thing.  When I graduated college and started my first job, I didn’t think about whether my male colleagues were earning more than me and […]

For every woman who’s ever questioned if she is paid less than her male colleagues, President Obama has an answer: Let’s run the numbers. According to a proposed rule, businesses with more than 100 employees will soon provide salary data to the EEOC annually, along with the more general information on workforce demographics employers have supplied since 1966. This information, which will break down salaries by gender as well as race, will help the agency target its investigations of alleged instances of workplace discrimination. “Women are not getting the fair shot that we believe every single American deserves,” President Obama said in announcing the proposed rule on January 29, the seventh anniversary of the Lilly Ledbetter Fair Pay Act, which makes it easier for female employees to sue their employers for unequal pay. “What kind of example does paying women less set for our sons and daughters?” The wage gap between American men and women remains substantial, with studies showing that American women still earn just 79 cents for every dollar earned by men. Further, the gender wage gap in the U.S. is 2.5 percentage points larger than the average among industrialized countries, according to a report from the Council of Economic Advisers. According to […]

I have been psychologically conditioned by American culture to feel that open discussion about salaries is deeply uncomfortable, as if it involved baring your personal finances. I have earned money ever since I was 9 years old, working as a mommy’s helper for neighbors, to supplement my small weekly allowance. And I learned very early on that it is not polite to gossip about how much money you had, whether from babysitting or from parents. As a kid, I also spent many summers in China, where my extended family lived. In China, unlike the U.S., people talked about how much money so-and-so made all the time, even to practical strangers. Salaries, bonuses, perks like cars and trips, were all discussed openly in China. That was normal talk in China, but gauche back in the States. Among Chinese circles here in the States, it seemed to me, the longer the immigrants have been here, the more immersion into the mainstream, the less talk there was about how much money folks made among acquaintances. This norm of “secrecy about pay” is ingrained in the professional workplace. That’s a shame. Companies have excellent and reliable information about what people are paid, both internally […]

In the realm of American politics and culture, California is known for leading the way on a host of issues, from the environment to the tech boom. Now the Golden State is poised to launch one of the nation’s boldest attempts to fix pay inequality between men and women. The state’s proposed Fair Pay Act, which passed the state Senate on August 31 and is supported by Gov. Brown, would ensure that male and female employees are paid the same if they perform “substantially similar” work, even if their job titles differ or they work in different offices. In addition, under the bill employees would be free to discuss their salaries without fear of retaliation. Proponents of the bill have also lauded it for closing a legal loophole that prevented people who worked for an employer with multiple locations from challenging their pay based on compensation at other sites. “This provision is what used to be called pay equity: not just requiring the same pay for the same job, but for different jobs that are similar in terms of effort, responsibility, and skill,” wrote Bryce Covert for Think Progress. In other words, under the bill an employer would have to offer equal pay employees […]