Florida Wage Law

Licensed Practical Nurse paid salary recovers $12,000 in unpaid overtime

Rob — Tue, 12 Jul 2011 21:20:35 +0000

This client worked as a licensed practical nurse for a medical doctor. She was paid a straight salary, but required to work through her lunch break and also required to stay until the last patient was seen by the doctor. She was paid a salary that was based on 40 hours per week. In just under 2 months after filing suit, Robert S. Norell was able to negotiate a settlement with the doctor that compensated the client for all of her unpaid overtime, an equal amount for liquidated damages, and a separate amount for her reasonable attorney’s fees and costs.

Florida’s Minimum Wage Increased to $7.31 per hour

Rob — Tue, 07 Jun 2011 00:31:18 +0000

Effective June 1, 2011, the Florida minimum wage was increased from $7.25 to $7.31 per hour. Florida’s minimum wage law requires the Agency for Workforce Innovation to calculate an adjusted minimum wage rate each year. This year there is only a $.06 increase. The minimum wage applies to all employees in the state who are covered by the federal minimum wage (the vast majority of workers are covered).

Florida employers must pay their employees at least $7.31 for each hour worked during the work week. The definitions of “employer”, “employee”, and “wage” for state purposes are the same as those established under the federal Fair Labor Standards Act (FLSA).

Employers of “tipped employees” who meet eligibility requirements for the tip credit under the FLSA, may count tips actually received as wages under the Florida minimum wage. However, the employer must pay “tipped employees” a direct wage. The direct wage is calculated as equal to the minimum wage ($7.31) minus the 2003 tip credit ($3.02), or a direct hourly wage of $4.29 as of June 1, 2011. So this means that tipped employees must receive a pay check with the tip credit wage. Some tipped occupations are very lucrative. There are employers that take advantage of that and “allow” its tipped employees to work without receiving a tip credit wage. This is a common practice and its illegal.

If you are not being paid at least a minimum wage, you may bring a civil action against the employer or any person violating Florida’s minimum wage law. Contact Robert S. Norell, P.A. for help in recovering your unpaid minimum wages.

Keeping track of wages: The US Labor Department has an app for that!

Rob — Mon, 06 Jun 2011 23:30:09 +0000

The following is a May 9, 2011 news release from the Department of Labor, Wage and Hour Division. I think this is a great tool for all employees who may have pay issues with their employers. Whether you use this “app” or any other system to document your hours, it’s always a good idea to keep track of your hours and cross check your records against your pay records.

New timesheet app to help ensure workers receive all wages earned

WASHINGTON — The U.S. Department of Labor today announced the launch of its first application for smartphones, a timesheet to help employees independently track the hours they work and determine the wages they are owed. Available in English and Spanish, users conveniently can track regular work hours, break time and any overtime hours for one or more employers. Glossary, contact information and materials about wage laws are easily accessible through links to the Web pages of the department’s Wage and Hour Division.

Additionally, through the app, users will be able to add comments on any information related to their work hours; view a summary of work hours in a daily, weekly and monthly format; and email the summary of work hours and gross pay as an attachment.

This new technology is significant because, instead of relying on their employers’ records, workers now can keep their own records. This information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.

“I am pleased that my department is able to leverage increasingly popular and available technology to ensure that workers receive the wages to which they are entitled,” said Secretary of Labor Hilda L. Solis. “This app will help empower workers to understand and stand up for their rights when employers have denied their hard-earned pay.”

The free app is currently compatible with the iPhone and iPod Touch. The Labor Department will explore updates that could enable similar versions for other smartphone platforms, such as Android and BlackBerry, and other pay features not currently provided for, such as tips, commissions, bonuses, deductions, holiday pay, pay for weekends, shift differentials and pay for regular days of rest.

For workers without a smartphone, the Wage and Hour Division has a printable work hours calendar in English and Spanish to track rate of pay, work start and stop times, and arrival and departure times. The calendar also includes easy-to-understand information about workers’ rights and how to file a wage violation complaint.

Both the app and the calendar can be downloaded from the Wage and Hour Division’s home Web page at http://www.dol.gov/whd. For more information about federal wage laws or to order a calendar by mail, call the division’s toll-free helpline at 866-4US-WAGE (487-9243).

Beauty supply store manager recovers over $15,000 in unpaid overtime.

Rob — Mon, 06 Jun 2011 23:08:25 +0000

A store manager for a national beauty supply chain was paid a salary, but did not supervise at least 2 full time employees. In fact, the store manager was the only employee of the store. The company assumed that the store manager was exempt because it paid her a salary and because most managers are generally exempt. Because the store manager was a “one woman show,” the company was not able to argue that she was exempt under the executive exemption. Instead, the company argued that the administrative exemption applied, however, it was clear that the store manager’s primary duty was to sell beauty supplies, merchandise the products, unload trucks, and otherwise run the store. These types of duties fall outside the administrative exemption. As store manager, she was required to attend several meetings and stay after hours, without any additional pay. She got fed up with having to work so many hours and consulted with Robert S. Norell, P.A. to see if there was anything she could do. Robert S. Norell, P.A. took her case and successfully negotiated a settlement with the company that compensated her for her unpaid overtime, plus an equal amount for liquidated damages, and paid all of her reasonable attorney’s fees and costs.

Admissions Counselor for Private University recovered over $25,000 for retaliation claim.

Rob — Wed, 01 Jun 2011 02:09:00 +0000

Admissions counselor was paid on based on a fluctuating work week, which resulted in her getting paid less the more hours that she worked. The fluctuating work week method of pay results in a worker receiving 1/2 time pay instead of full time and a half. She didn’t understand the way she was getting paid because she believed she was entitled to full time and a half. She complained about the manner in which she was paid, and shortly thereafter, the university retaliated against her by placing her on a PIP (Performance Improvement Plan) and eventually terminated her employment. Robert S. Norell, P.A. successfully negotiated a settlement with the university that compensated the terminated admissions counselor for her lost wages and reasonable attorney’s fees and costs.

Loan Officer for mortgage brokerage wins overtime judgment for $30,000.

Rob — Wed, 01 Jun 2011 02:09:00 +0000

A loan officer who worked for a mortgage brokerage in West Palm Beach was awarded $30,000 in unpaid overtime. The loan officer was paid commission only for all of her work, despite the fact that she worked approximately 48-50 hours per week. The mortgage brokerage incorrectly assumed that, since the loan officer was paid commissions only, it did not have to keep time records nor did it have to pay overtime. The mortgage brokerage argued that the loan officers were exempt outside salespeople. Robert S. Norell, P.A. successfully demonstrated that the loan officer’s position was that of “inside sales,” and not subject to the outside sales exemption. Although many loan officers make some sales outside of the office, most sales are consummated inside the office via the telephone, fax and internet (e-mails). The judge issued an order finding the mortgage brokerage to be in violation of the Fair Labor Standards Act and awarded the loan officer all of her unpaid overtime, plus an equal amount for liquidated (double) damages, and a separate amount for her reasonable attorney’s fees and costs.

Three Nurses recovered over $100,000 in overtime.

Rob — Wed, 01 Jun 2011 02:09:00 +0000

Three LPNs who worked for a national nurse staffing company worked 70-80 hours weekly, but only received their straight hourly rate. The staffing agency incorrectly assumed that LPNs were exempt from overtime. Generally speaking, the only nurses who can be exempt from overtime are Registered Nurses (RNs). After a brief period of litigation, the staffing agency entered into a settlement agreement and paid the LPNs all of their unpaid overtime, an equal amount for liquidated damages, and a separate amount to cover the LPNs reasonable attorney’s fees and litigation costs.

Dispatchers for transportation company paid salary for 48 hour work week.

Rob — Wed, 01 Jun 2011 02:09:00 +0000

Two dispatchers were paid a salary and required to work 48+ hours per week without receiving overtime compensation. The company classified the dispatchers as “exempt” and failed to pay them any overtime. Robert S. Norell, P.A. filed suit against the company on behalf of the dispatchers alleging that the company misclassified the dispatchers as exempt from overtime. After a close examination of the actual duties of the dispatchers, the company decided to settle the lawsuit. Robert S. Norell, P.A. obtained a significant settlement for the dispatchers to compensate them for not receiving overtime pay in accordance with the Fair Labor Standards Act.

Restaurant Waiters and Overtime Law

Rob — Thu, 19 May 2011 01:19:19 +0000

I recently met a waiter who works for a major seafood restaurant chain here in Florida. Ross has been with his current employer (I don’t want to reveal the true name of this well-known restaurant, so we’ll call it ”The Crusty Crab” or “The Crab” for short) for over 4 years and is one of the top waiters. For the past 4 years, Ross has earned approximately $100k annually, even though he admitted to me that he only reports less than half of that. Ross works 6 and 7 days a week…he even bragged to me about not having a day off for the past 3 months. Ross works about 70 to 80 hours per week. Despite all of the overtime hours that he works, Ross doesn’t get any overtime compensation. The reason that he does not get OT compensation is because The Crusty Crab does not allow it. Or should I say, The Crab will not pay it. Truth is, Ross can care less because he is still making good money.

Here’s how The Crab and Ross work their magic. The Crab has a “policy” where it will schedule waitstaff to work no more than 40 hours per week. Ross clocks in and out using a swipe card on the cash register. When Ross reaches 6 hours for the day, he’ll “break out” as he calls it. “Breaking out” means that he goes out on break so that he’s off the clock, but he continues to work and wait tables. Ross ends up making alot more money because he does really well with tips (about $40 per hour on the average).

Why does Ross do this and why does The Crab allow this conduct to go on? Well, Ross stands to make an extra $200-$250 over his final 4 or 5 hours and The Crab gets free labor.

What is wrong with this? Well, for starters, it is illegal. Under the Fair Labor Standards Act (FLSA), Ross is supposed to get paid time and a half his regular rate of pay for all hours worked in excess of 40 per workweek. Since Ross is working 30-40 hours of overtime per week, he is owed at least one and a half times the minimum wage (currently $6.79 per hour), or $10.19 per hour. That’s another $300-$400 per week that The Crab should be paying Ross. Ross didn’t realize this, but he really doesn’t care because he’s taking home over $2,000 per week. He’s surprised and he didn’t realize that he was entitled to overtime. He thought that, since he voluntarily worked, he was not entitled to overtime compensation. Under the FLSA, you cannot “voluntarily” waive your right to overtime compensation.

The Crab knows that Ross is working overtime, but it simply turns a blind eye to the situation. The Crab benefits because Ross, who is a great waiter, serves The Crab’s tasty seafare, and it doesn’t cost them a dime. Ross benefits because he is permitted to work and make an additional $800 to $1000 per week.

This practice is very common in the restaurant industry. While Ross’s situation seems a little extreme, there are many waiters and waitresses who work for restaurants that have similar “No Overtime” policies, but not as lucrative as Ross’s job. Many restaurants force their waitstaff to work “off the clock” for tips only. If you are tired of this practice and want to get paid your overtime compensation, you should contact a Wage & Hour attorney in your state. Call me for a free consultation. The attorneys at FloridaWageLaw.com help people from all over the United States.

By the way, if Ross ever decides to pursue a claim against The Crab for unpaid overtime, his claim may be worth upwards over $90,000. Here’s the math: 30 hours of overtime per week at $10.19/hr is $305.70. Under the FLSA, claims can go back as far as three (3) years in some cases. Since Ross works holidays and rarely takes any time off, we can assume 150 weeks times $305.70, which amounts to $45,855. Successful litigants in FLSA cases are entitled to an award of liquidated damages in an amount equal to the unpaid overtime, or another $45,855. Therefore, Ross’s overtime claim would be $91,710. Most people don’t realize the sheer magnitude of an overtime claim that spans over 2 to 3 years

Recent trends in overtime litigation

Rob — Thu, 19 May 2011 01:17:10 +0000

The housing industry is upside down. There have been so many homes built by the builders that it has resulted in real estate values tumbling. This has resulted in the mortgage companies losing a lot of business as well. Look at the Countrywide debacle. Countrywide was recently purchased (bailed out) by Bank of America. Countrywide and many other mortgage companies sold a lot of sub prime mortgages with adjustable rates and 3 or 5 year balloon payments. We are now seeing the effect of this with the foreclosure industry booming.

What does all of this have to do with overtime?

Well, the builders were working overtime to build the houses fast enough for the mortgage companies to fund these sub prime loans. And the mortgage companies were working their closers, processors, loan specialists, title reviewers, underwriters, loan officers, and other employees almost around the clock to shoulder the massive workload at the height of the real estate boom. Many of the mortgage companies’ employees were paid a salary and no overtime.

It is important to understand that the biggest misconception among employers and employees alike is that being paid a salary means that you are not entitled to overtime. THAT IS NOT TRUE!!! Many employers will tell their employees, “your salaried…you don’t get overtime.”

Employees who are worked like dogs get tired of ”No Overtime” polices fast. Mortgage companies recognized this and would pay SPIFS or some other type of bonus or commission in lieu of overtime. Another thing that we see is that an employer will sometimes entice its employees to work through their lunch by providing a “FREE” lunch and “expecting” you to eat at your desk while you continue to answer the phone (with food particles spewing from your mouth), review documents, review and reply to e-mails, etc…. If you eat a “FREE” lunch and you give your employer an extra 1/2 hour or hour of work, then your lunch is really not free, is it?. Many employers will tell you to clock out for lunch or “show” a lunch on your timecard…and then at the same time you are expected to complete a heavy work load. Employers are not allowed to sit back and reap the benefit of this unpaid work. This is illegal.

If an employee works more than 40 hours in any 7-day workweek, without receiving overtime at a rate of 1 and 1/2 times their regular rate of pay, then there is a violation of the FLSA (Fair Labor Standards Act). Back to the bonuses and commissions. Receiving a bonus or commission is great, but it is hardly ever added into your pay when computing overtime compensation (assuming you are one of the lucky ones and you actually get paid some overtime). The FLSA requires that all performance based bonuses and commissions are added into your regular pay…therefore your overtime rate is naturally higher. Employers fail to do this very often. If this happened to you, then you have a claim for unpaid wages, or unpaid overtime premiums.

Also, regarding the housing industry, there are a lot of “superintendants” who were paid nicely ($50k to over $100k plus bonuses) but who also worked ungodly hours. Believe it or not, some superintendants or project managers may be entitled to overtime, even though they received a high salary. Really, one of the only exemptions that could apply is the Executive Exemption (commonly referred to as the manager or supervisor exemption). In order to fit within the exemption (and thus NOT be entitled to overtime) you must supervise at least 2 full time employees (or the equivalent (1 full time and 2 part-time for example)). If you manage projects or sub-contractors, you probably don’t qualify for this exemption to overtime, especially if your primary duty involved manual labor (like BUILDING the homes).

The bottom line is that both the housing and mortgage industries profited tremendously over the past several years. This profit was not always passed down to company employees. In fact, many employees are exploited and treated unfairly, despite “working their tails off.” If you ever worked overtime in any type of job, you should consult with a wage and hour attorney and have your particular situation evaluated. Some of my largest cases have come from clients who really had no idea of their right to overtime under the law….even if they are paid a nice salary. There are strict requirements regarding one’s salary (generally, you cannot be docked) and one’s primary job duties in order for an exemption to apply to your situation. Take the time to talk to an overtime attorney and see if you may have been exploited by your past or present employer. There are many ongoing class action overtime lawsuits that have been filed in these industries. Class action unpaid wage cases are a very hot topic, especially given the state of the economy. Do your research and see if you may be entitled to overtime….you owe it to yourself.