FLSA Violations

Gana Weinstein LLP represents employees in collective action cases brought under the Fair Labor Standards Act (FLSA). The FLSA governs the most basic interactions between employers and employees. The FLSA establishes a standard for overtime pay, minimum wage, and child labor. Employers violate the FLSA if they misclassify hourly employees as exempt, deny overtime, order employees to work after working hours, allow managers to take from employees’ tips, alter time cards, or require employees to work more than forty hours per week.

How Should Employees Be Paid?

The FLSA requires that most employees in the United States be paid at least the federal minimum wage for all hours worked. In addition, employers must pay overtime at time and one-half the regular rate of pay for all hours worked over 40 hours in a week. Time spent working “off the clock” is still “working time” for which employees should be compensated. Employers unlawfully ask employees to work without compensation when they ask employees to work from home, deduct breaks that are not actually taken, misclassify an employee as exempt, or require any work during non-working hours.

What Employees are Exempt from the FLSA?

Some employees are exempt from the FLSA requirement. Under section 13(a)(1) of the FLSA, administrative employees, executives, doctors, lawyers, some computer workers, salespeople, and people in some artistic fields are exempt. However, the United States Department of Labor has clarified that employers should not rely on general titles to determine employee exemption. Rather, employers should determine if an employee is exempt from the FLSA on a case-by-case basis.

Notably, the FLSA does not exempt lower income workers, blue-collar workers whose employment responsibilities include manual labor, or any other employees that are not specifically excluded by the statute.

How does the FLSA Affect Me if I work for Tips?

Employees who work in hotels, restaurants, and other industries in which tips comprise a portion of the employees’ compensation are particularly susceptible to illegal employer behavior. Common violations include illegally docking time off cards, allowing managers to participate in tip pools, deducting tips from pay checks, paying employees less than the minimum wage, and refusing to pay overtime.

How Are FLSA Cases Brought?

FLSA cases are brought through the federal courts. FLSA cases are brought as collective actions, in which employees who are similarly situated may consolidate an unlimited number of claims. Collective actions are different from class actions in that collective actions require employees to actively participate or “opt in” under FLSA Section 216(b). Thus, an employee becomes part of the collection action only if the employee signs a consent form to opt-in.

Once a collective action suit is filed, the plaintiffs must seek conditional certification from the court, after which discovery commences and the class is subsequently certified.

Generally, employees must file an FLSA overtime claim within two years of the employer’s illegal act. It is important to immediately contact an attorney if you believe your employer has violated the FLSA.

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