July 20, 2015

FLSA Misclassification Proves Costly for Local Employer

Posted in Administrative Exemption, Computer-related Occupations Exemption, Enforcement, Executive Exemption, Exempt/Non-Exempt Employees, Fair Labor Standards Act, Minimum Wage, Outside Sales Exemption, Overtime, Professional Exemption tagged , , , , , , , , , at 10:22 am by Tom Jacobson

US Department of Labor v Patel

Local hotelier ordered to pay $184,000.00 to settle wage violation suit.

A Fargo, ND hotelier with a property in Alexandria, MN will pay nearly $200,000.00 to settle a lawsuit brought by the US Department of Labor (see Court Orders Hotel Owner to Pay More than $180K in Back Wages, Damages to 200 Workers Across North Dakota, Montana and Minnesota, DOL Release No. 15-1294-DAK; Lawsuit Settlement Helps Hotel Workers in Alexandria, Echo Press July 16, 2015). The DOL alleged in the suit that Bharat I. Patel violated the Fair Labor Standards Act by failing to pay minimum wage and/or overtime rates to nearly 200 employees at a number of hotels, including the Country Inn and Suites in Alexandria.

More specifically, the DOL claimed that Patel misclassified nonexempt workers as exempt salaried employees (see US Labor Department Lawsuit Alleges Hotel Owner Owes $200K in Wages, Damages to 192 Workers at 13 Hotels, DOL December 16, 2104). This, the department said, resulted in these workers not receiving minimum wage for all hours worked and not being paid overtime. According to the DOL, the company also failed to combine hours for employees who worked at two locations in the same workweek and failed to maintain accurate records of all hours worked and pay rates.

The lawsuit was resolved via a July 10, 2015 consent judgment in which Patel denied any wrongdoing but agreed to pay $184,000.00 to settle the dispute. In addition Patel agreed to train managers on FLSA wage requirements and to provide workers information on wage laws and contact information for the DOL’s Wage and Hour Division for at least four years.

How are FLSA exemption mistakes made, and why are they so expensive? To answer that, one needs to understand the two basic principles of the FLSA’s overtime rule. First, the FLSA generally requires that employees be paid at 1.5 times their regular hourly rate for their overtime (that is, their hours worked in excess of 40 hours in a workweek). Second, some employees, such as certain executives, administrators and professionals are exempt from that overtime requirement.

Claiming such exemptions may seem simple, but the FLSA has complex definitions of who can lawfully be classified as an exempt executive, administrator or professional. Those definitions all include a requirement that these employees be paid a salary of at least $455.00 per week. They also include a “duties test.” This requires that in addition to the salary requirement, the employees’ actual job duties must meet certain criteria before the employees can be considered exempt.

Thus, one of the most common mistakes starts when employers wrongly assume that by paying someone a salary, they automatically become exempt from overtime. Often, the employers also give that person a title such as “manager.” Then, the employers allow or require those people to work more than 40 hours per week without paying for the overtime.

But paying someone a salary and calling them a manager (or some other authoritative title) does not make them exempt if they do not also pass the duties test for an FLSA exemption.

This mistake is expensive. When non-exempt employees are misclassified as exempt, they are entitled to recover all of the overtime they should have been paid during the preceding two years. Plus, they can recover an additional equal amount as liquidated damages and their attorney’s fees and court costs. These costs are compounded when multiple employees are at issue. And, as was the case in Patel lawsuit, employers can also be ordered to implement other remedial measures such as training.

The DOL’s recent rulemaking actions provide an additional reason for employers to pay close attention to these FLSA exemption issues. On July 6, 2015 the DOL proposed a rule that would raise the salary basis test from around $23,600.00 per year to approximately $50,000.00 per year. If implemented, the new rule would greatly reduce the number employees who would be exempt under the law.

As the Patel case confirms, FLSA exemption mistakes are costly. And, based on recent DOL activity, those mistakes could get even more expensive in the future.

If you are an employer that is wondering if your employees are properly classified under the FLSA, or if you are an employee who wonders if you have been misclassified and underpaid, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2015 Swenson Lervick Syverson Trosvig Jacobson Schultz Cass, PA

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September 7, 2010

DOL targets health care & other industries in FLSA enforcement campaign

Posted in Aggregating Work Hours, Enforcement, Exempt/Non-Exempt Employees, Fair Labor Standards Act, Hours Worked, Independent Contractors, Independent Contractors, Meal Periods, Overtime, Rounding, Travel Time tagged , , , , , , , at 3:35 pm by Tom Jacobson

As a part of its stepped up efforts to enforce the Fair Labor Standards Act, the Department of Labor has taken aim at certain industries.  The health care industry now appears to be one of the DOL’s targets.

In a recent article published in the Workplace Law Bulletin, the Society for Human Resource Management noted that when common FLSA issues permeate an industry, the DOL will target that industry with its enforcement efforts.  In the health care industry, for example, SHRM listed the following common violations:

  • Meal period violations;
  • Rounding time in the employer’s favor;
  • Failing to pay for pre-shift/post-shift time;
  • Mistakes about what is “off the clock” time;
  • Travel time errors;
  • Failure to aggregate work hours;
  • Employee/independent contractor misclassifications;
  • Exempt/non-exempt employee misclassifications.

As a result, some DOL Wage and Hour Division district offices have started local initiatives targeting health care employers.  These initiatives have been costly for non-compliant employers.  For example, the DOL  reported earlier this year that $2.2 million in back wages was awarded to health care workers in New York, while over $2 million was awarded late last year to their colleagues in Connecticut and Rhode Island.

The health care industry is not alone.  SHRM reports that other low-wage industries, such as agriculture, day care, restaurants, garment manufacturing, hotels and motels, janitorial, and temporary help have also been targeted.    Given the DOL’s March, 2010 administrative interpretation that most mortgage loan officers are not exempt from the FLSA’s overtime standards, it appears that the financial services industry is also in the department’s sights.

Although certain industries may be DOL targets, all employers must be aware of what the FLSA requires, for violations can lead to not only DOL enforcement, but also private lawsuits brought by employees or classes of employees.  For these reasons, employment policy development and review, education, training,  and proper record keeping are musts for all employers.

The SHRM article, “Health Care Industry Targeted in FLSA Enforcement,” can be found at http://www.shrm.org/LegalIssues/FederalResources/Pages/HealthCareIndustry.aspx.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

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